CHIEF OLADAPO AKINDE v. RAPHAEL OGUNDIRAHUN
(2013)LCN/6603(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/AK/49/2011
JUSTICES
SOTONYE DENTON WEST 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
CHIEF OLADAPO AKINDE
Lijoka of Idanre Land
(Suing for and on behalf of High Chief Ologbosere Akinde family) Appellant(s)
AND
RAPHAEL OGUNDIRAHUN Respondent(s)
RATIO
THE PURPOSE OF GROUNDS OF APPEAL
The purpose of grounds of appeal is to give notice to the respondent of the errors complained of. Thus, where an appellant relies on any ground, it must be properly raised either by way of a ground of appeal or a cross appeal in a case of a respondent.
See. BHOJSONS PLC. V. DARUEL – KALIO (2006) 5 NWLR (PT. 973) 330.
This is precisely the reason why a ground of appeal must be couched in such a way as to attack the judgment of a court on the issue decided by it. See. F. B. N. v. MAY MED. CLINICS (1996) 9 NWLR (Pt.471) 195 FOLBOD INVEST. LTD. v. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (Pt. 478) 344 at 351.
BOSIEL v. KACHALA (2006) 1 NWLR (Pt.962) 587
NGIGE V. OBI (2006) 14 NWLR (PT.999) 1. PER OWOADE, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACTS BY THE TRIAL COURT
In the instant case, I must repeat, the trial customary court properly assessed and evaluated the evidence of the parties, which made it easy for the appellate High Court to confirm the decision of the trial customary court.
See: EBBA v. OGODO (1984) 1 SCNLR 372, ILODO v. EFAROFIA (1980) 5 SC 42 AKTNLOYE V. EYIYOLA (1968) NWLR 92, BALOGUN v. AGBOOLA (1974) 1 ALL NLR (Pt.2) 66 AKPUNA V. NZEKA (1983) 2 SCNLR 1, AMIDA v. OSHOBOJA (1984) 7 SC 68 AGBAJE V. AJIBOLA (2002) 2 NWLR (PT.750) 127, THOMPSON V. AROWOLA (2003) 7 NWLR (PT.818) 163.
Finally, this case presents a situation of concurrent findings of fact of two lower courts, unless such findings are perverse and not supported by credible evidence or have resulted in miscarriage of justice, this court ought not to interfere.
See: WOLUCHEM V. GUDI (1981) 5 SC 291, KENON v. TEKAM (2001) 14 NWLR (PT. 732) 12. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of O. O. Akeredolu J., sitting at the Akure Judicial Division of the High Court of Justice, Ondo State, which judgment was delivered on 5/12/2009.
The appellant as plaintiff before the customary court at Idanre claimed against the Respondent for the following reliefs:
1. A declaration that the plaintiff is entitled to the grant of customary right of occupancy over the land lying situate and being at Isagun – Saro High Hill, Idanre which is bounded on the right side by Olofin Grammar School, on the left side by Late Herbert Olubodun Farm, on the topside by High Chief Ologbosere layout and on the bottom by root path.
2. A declaration that all previous sales of land by the defendant null/void and of no effect.
3. N1,000 damages for trespass committed by the defendant his servants, agents privies, or otherwise however from interfering, entering and/or trespassing unto plaintiff’s land the subject matter of this action.
4. A perpetual injunction restraining the defendant his servants, agents, privies or otherwise however from interfering, entering and/or trespassing unto plaintiff’s land the subject matter of this action.
The respondent also filed a counter – claim before the lower court, the customary court as follows:
1. A declaration that the Defendant is the person entitled to the customary right of occupancy over the land which situates and being at Isagun/Saro Idanre which land is more particularly described as follows:
i. The land is bounded on the 1st side by Olofin Grammar School’s land.
ii. On the 2nd side it is bounded by the land of the Late Chief Olubodun.
iii. On the 3rd side it is bounded by the property of the Baale of Arapa
iv. On the 4th side it is bounded by the land of one Chief Olagidi (Now deceased).
2. Perpetual injunction restraining the Defendant his Servants, agents privies from committing any acts of trespass upon the land, which is the subject matter in this suit.
The case of the appellant in the lower court (customary court) is that his great grandfather Balogun Oyokuremo and his grandfather High Chief Logbosere Akinde left Oke Idanre to settle on the land at Isagun/Isaro. Upon the demise of his great grandfather, his grandfather inherited the land. His grandfather had 30 wives and many children. When his grandfather died the land could not accommodate his father’s farm and Martin Akinde’s farm. His father moved to another location leaving Martins Akinde on the land. Martins Akinde was married to Rebecca, the Respondent’s sister. Both Martins and Rebecca Akinde are dead. The respondent continued farming on the land without disturbance from the appellant until appellant was informed that the respondent was selling the land. Appellant also told the court that he is not related to Akinde family through his mother but that he is a son of Logbosere Akinde.
The respondent case is that the land originally belonged to his father and that he had been on the land before his father died. He had been on the land since 1940 without any challenge. He planted mangoes, coffee, yam among other things on the land. In 1997, Olofin Grammar School encroached on the land and he wrote a letter (Exhibit A) to the Board of Governors of the School.
He placed caretakers on the farm to look after his crops. He denied that appellants father had a on the land. He gave the name of appellant’s father as Julius who had a farm in Laisa. He gave a portion of the farmland to Martin Akinde his brother – in law in 1959. The portion he gave to Martin Akinde is next to his boundary with Olubodun. He sold portions of land to Benson Omoniyi, Mr. Akinladejo, Mrs. Dorcas Oladugba Mr. Johnson Adesemoye and Mr. Akintorinwa.
In support of his claim, the appellant testified and called two witnesses. The respondent gave evidence and also called two witnesses.
After the close of evidence the court and the parties visited the locus in quo and counsel on both sides thereafter furnished their final addresses. The trial court’s findings are as follows:
1. The evidence on record shows that the father of the plaintiff was called Julius Oladapo, Logbosere Akinde was the father of the plaintiff’s mother. The plaintiff has maternal relation with Logbosere Akinde under customary law, the plaintiff is not entitled to the claim being sought.
2. Nobody from the biological paternal lineage joined the plaintiff in suit, Idanre culture and custom is patrineal (sic) patrilineal
3. All lands in Idanre belongs to Owa of Idanre land, but when you open up a virgin land and plant permanent crops like Koko, Kola and Citrus, that portion belongs to the person that owns the crop.
4. Albart Olubodun, Chief Olayidi, Mr. Francis Akintorinwa PW2, all have their farm and share boundaries with the disputed land located at Isegun – Sare. This means that Isagun – Sare does not belong to a single family but to Owa of Idanre land.
5. The grandfather of the plaintiff and the plaintiff did not have any landed properly, crops either cash or permanent on the disputed land but the defendant had (sic) has.
6. The defendant had been on the disputed land since 1940 i.e 67 years ago and had been exercising all rights of ownership and effective occupation over the disputed land without any molestation or challenge from anybody.
7. Exhibit ‘A’ tendered by the defendant confirmed that when Olofin Grammar school was encroaching on the disputed land, he wrote to the Board of Governors chairmaned by the plaintiff then to check or warn the Board of Governors for their encroachment. This shows that he does not sleep over his right.
8. PW1, High Chief Mrs. Olagidi under cross examination said that the defendant has been following her sister to the farm for over 40 years and that the defendant entered the land in dispute 6 years ago while PW2 Mr. Francis Akintorinwa said he had never set his eyes on the defendant on the disputed land. PW1 and PW2 statements are contradictory. The court opines that they are not witnesses of truth and their evidence should be discountenanced.
9. DW3 Mrs. Yemisi Osobade (nee Akinde) the biological daughter of Mr. Martins Akinde gave evidence that the disputed land does not belong to Akinde family and that the defendant brought is father Martins Akinde to the land in dispute. The court opines that this is the correct truth.
10. Court findings during the visit to locus – in – quo confirmed that the defendant has cocoa, kola and citrus trees that are very old due to old age, the land in dispute was demarcated some boundary with life trees such as ‘Atori’ which is typical and in conforming with the tradition system of boundary making in Idanre native law and custom.
11. The plaintiff has nothing to show as being his landed property on the land in dispute during the visit to locus – in – quo.
12. The court opines that apart from all the aforesaid, the plaintiff has acquiesced whatever right if any defendant has been exercising all rights of ownership since 1940 without any record of challenge on the land in dispute.
The trial court disbelieved the plaintiff and his witnesses, accepted the evidence of the defendant and his witnesses and found in favour of the defendant counter claim.
Aggrieved by the judgment of the customary trial court, the plaintiff appellant filed a notice of appeal containing four (4) grounds of appeal to the High Court of Ondo State on 18/2/08
Mr. Pius Olu Daodu of counsel to the appellant formulated four (4) issues for determination of the appeal before O. O. Akeredolu, J.
The issues were:
1. Whether or not there are pieces of evidence on record that support the finding of the trial customary court that a maternal relation does not inherit landed property or that all land in Idanre belong to Owa of Idanre land.
2. Whether or not the trial customary court correctly arrived at the finding that the defendant had been on the land since 1940 and thus the plaintiff slept on his right if any.
3. Whether or not this court can accept or act on any of the two conflicting account of ownership given by the defendant.
4. Whether or not the traditional evidence adduced by the plaintiff he is entitled to the reliefs claimed.
On the first issue the Learned Trial Judge found in part for the appellant as he agreed that the finding of the trial court on the issue of appellant’s relationship with Akinde family is not supported by the evidence before the court.
On the second issue the Learned Trial Judge at page 73 also found in part for the appellant as he agreed that the finding of the court that “the plaintiff has acquiesced whatever right if any” is not supported by the evidence but that the trial customary court believed evidence of the respondent and his witnesses that he had been on the land since 1940 and that the basis of the finding is in the records.
The learned trial judge held issue 3 to be incompetent “as the appellant did not complain that the customary court had before it two conflicting stories of how the respondent became owner of the land as no ground of appeal is formulated on it. It is therefore wrong for learned counsel to formulate an issue for determination, to be competent it must be based on a ground of appeal”
The Learned Trial Judge reviewed the evidence tendered by the parties at the lower customary court and resolved Issue 4 against the appellant. His Lordship reasoned that it is not every slip committed by a court that will result in an appeal and that even though the finding of the customary court is that the appellant is a maternal relation of Akinde family, the error has not occasioned any miscarriage of Justice.
Accordingly, the plaintiff’s appellant’s appeal was dismissed and the judgment of the customary court upheld.
Still dissatisfied with the above Judgment, the appellant again lodged a notice of appeal dated 10/3/08 in the court of appeal on 19/03/08.
The appellant was later granted leave to amend the Notice of Appeal. The appellant’s Amended Notice of Appeal dated 24/10/11 and filed on 26/10/11 was deemed filed on 3/11/11.
The Grounds of Appeal in the said Notice of Appeal devoid of their particulars are as follows:
GROUNDS OF APPEAL
1. The Learned Trial Judge misdirected itself when he held that with regards to issue 3, the appellant did not complain that the customary court had before it two conflicting stories of how the respondent became owner of the land as no ground of appeal is formulated on it. It is therefore wrong for learned counsel to formulate an issue based on a non-existing ground, it is trite that for an issue for determination to be competent it must be based on a ground of appeal”
2. The Learned Judge erred in law and came to a wrong conclusion when he held that the respondent did not lead evidence in support of the pleadings tendered as Exhibit ‘B’ which was filed in the High Court. Pleading do not constitute evidence. The value of Exhibit ‘B’ is limited to the fact that the respondent once instituted action against the appellant in the High Court. The only evidence from the respondent is the one he led before the trial court”
3. The Learned erred in law and came to a wrong conclusion when he held the evidence of the Appellant is with regard to the land he claimed in his process as belonging to Akinde family. It is apparent that the judgment of the court is specifically on the counter claim since the description of the land granted to the respondent fits the description of land he claims to be his own in the counter claim”
4. The decision is against the weight of evidence.
5. The Learned Trial Judge erred in law when he held that the defendant’s counter claim succeeds as held by the trial customary court.
6. The learned High Court Judge erred in law in refusing to hold that the appellant established his case to entitle him to judgment.
Appellant’s brief of argument dated 4/11/2011 was filed on the same day. Respondent’s brief of argument dated 19/03/2012 was filed on 20/03/2012 and deemed filed on 28/05/2012. Learned Counsel for the appellant nominated three (3) issues for determination, they are:
a. Whether or not the Learned Judge correctly made a finding on the value of Exhibit B and the ground complaints (sic) of the two conflicting stories of how the respondent became owner of the land (Grounds 1 and 2).
b. Whether or not the Learned Judge correctly held that the Judgment was rightly given on the basis of his counter – claim in that, the description therein fit the description of the land the respondent claimed, when evidence of boundaries men (sic) whom the respondent claimed to share boundaries with were in favour of the appellant (grounds 3 & 5).
c. Whether or not from the totality of facts and evidence before the court, the learned Judge correctly made a finding on who is entitled to ownership of the disputed land (grounds 4 & 6).
Learned Counsel for the respondent Chief O. J. Jejelola formulated four (4) issues for determination
1. Whether or not the Learned Judge was correct in affirming the decision of the lower court which held by relying on the uncontroverted of defendant/respondent giving detailed description of the land and what it contained therein, which was by the trial court upon visit to locus-in-quo.
2. Whether or not the Learned Judge was correct in affirming the decision of the lower court which has by relying on traditional evidence of the defendant/respondent in this case, has successfully proved how he became the rightful owner of the disputed land.
3. Whether or not the Learned Judge was right in affirming the decision or judgment of the lower court as per the facts, finding and evidence before the lower court as to the ownership of the disputed land.
4. Whether or not the Judgment of the High Court was right to the effect that Exhibit ‘B’ has no value in the case before the trial court other than showing that the respondent once instituted an action against the appellant before the High Court.
The appeal will be decided on the issues formulated by the appellant. Learned Counsel for the appellant made out two legs from issue No. 1. On the first leg of issue No.1, Appellant’s Counsel submitted that the learned Trial Judge was wrong in finding that the respondent did not lead evidence in support of the pleadings tendered as Exhibit B which was filed in the High Court. That pleadings do not constitute evidence. He submitted that the respondent was cross – examined on Exhibit B and he admitted the averment contained therein. That, the principle of law that pleadings do not constitute evidence will not apply to this case as no pleading is required in the customary court. Counsel submitted that the learned Judge was wrong in stating that the value of Exhibit B is limited to the fact that the respondent once instituted action against the appellant in the High Court. Counsel submitted that the main purpose of Exhibit B is to show conflicting stories from the respondent evidence in Chief. Appellant’s counsel referred to the case of OLUJINCE v. ADEAGBO (1988) 2 NWLR (PT. 75) 238 that pleadings in an earlier case may be used to contradict a party’s case and that documents when tendered in a case are to be used as hanger on which to assess oral testimony.
On the second leg of Issue No. 1, Learned Counsel for the appellant submitted that the Learned Trial Judge was wrong in finding that no ground of appeal complained of conflicting stories of how the respondent became owner of the land. That, Ground 2 of the appellant’s grounds of appeal at pages 31 to 32 of the record of appeal adequately complained of two conflicting stories of the respondent became owner of the land.
Appellant’s counsel submitted that the ground of appeal with its particulars show that the complain was against the court’s failure to consider that the respondent’s evidence in Chief and under cross examination show conflicts. That the two versions of the respondent stories on how he became owner of the disputed land are conflicting. He referred to the case of ODUKWE v. ACHEBE (2008) 1 NWLR (Pt.1067) 40 at 46.
He urged issue No 1 to be resolved in favour of the appellant.
Learned Counsel for the respondent reacted to appellant’s issue No. 1 in his treatment of issue No 4. He submitted that the court below (High Court) was right to the effect that Exhibit ‘B’ has no value in the case before the trial court other than showing that the respondent once instituted an action against the appellant before the High Court. Counsel submitted that it is trite law that mere pleadings without evidence in support in court amounts to nothing.
He referred to the case of Ezennah v. Attah (2004) 17 W.R.N.P. 1. Respondent’s counsel further submitted that there was no evidence given by the respondent in respect of Exhibit ‘B’ at the High Court and also that the claim on which Exhibit ‘B’ was premised was struck out by the High Court and therefore goes to no issue.
He urged is to affirm the decision of the lower court to the effect that Exhibit ‘B’ is irrelevant to the instant case.
The appellant’s complaint in the two legs of issue No 1 are somewhat related. It is important at this juncture to put the facts leading to the complaint in proper perspective.
In the course of the cross – examination of the respondent at the lower court (customary court), the following transpired at pages 10 – 11 of the record of appeal. “XXXX by the plaintiff’s counsel:
Yes I am Chief Ogundiranun Adewale. This case was since 2001 filed against you. Yes I filed a case in the High Court immediately after this suit court. Yes, I told my lawyer that I enter the place as a virgin land in 1940.
This document sent/filed in this case in 2001 was presented as exhibit. This document was filed by the defendant. The counsel to the defendant admitted that they filed the document at the High Court. The Court admitted it as exhibit “B’, in this case—”
Believing that the statement
“I told my lawyer I enter the place as a virgin land in 1940” was contradictory to the earlier statement by the respondent during examination in Chief, the learned counsel for the appellant made reference to the same in the particulars No. (e) to Ground 2 of his notice of appeal to the High Court.
It was on account of this that the learned Judge held at page 73 of the record that:
“With regards to issue 3, the appellant did not complain that the customary court had before it two conflicting stories of how the respondent became owner of the land as no ground of appeal is (was) formulated on it. It is therefore wrong for learned counsel to formulate an issue based on a non – existent ground, It is trite that for an issue for determination to be competent it must be based on a ground of appeal. See AMADI V. NNPC (2000) NWLR (PT.674) 776”
The second leg of a issue No 1 is based on the above holding of the Learned Trial Judge.
Ground 2 of the Appellant’s Grounds of Appeal to the High Court from the Customary Court together with its particulars read as follows:
2. The trial customary court erred in law when it held “All lands in Idanre belongs to Owa of Idanre land but when you open up a virgin land and plant permanent crops like Cocoa, Kola, Citrus that portion of the land that cropped belongs to the person that owns the crops, Herbert Olubodun, Chief Olagidi, Mr. Francis Akintorinwa PW2, all have their farm and share boundaries with the disputed land located at Isagun – Soro.
This means that Isagun – Soro does not belong to a single family but to Owa of Idanre land. The grandfather of the plaintiff and the plaintiff did not have any landed property, either cash or permanent on the disputed land but the defendant had”
PARTICULARS
(a) The finding is unsupportable in view of the evidence before the court.
(b) There is no judicial notice or proof of the facts that all lands in Idanre belong to Owa of Idanre.
(c) By virtue of land use Act land belong to individual family but held in trust by the state Government.
(d) That if Herbert Olubodun, Chief Olagide, Mr. Francis Akintorinwa who share boundaries with disputed land testified that they share boundaries with the plaintiff they must be deemed to know whom they share boundaries with.
(e) The defendant under cross – examination gave different account of ownership to the land from the account he gave in evidence in Chief,
Learned Counsel for the before the court below formulated his issue No. 3 not on Ground 2 of the Ground of Appeal before that court as he is now claiming but on the particular (e) under Ground 2 of the said Ground of Appeal.
The purpose of grounds of appeal is to give notice to the respondent of the errors complained of. Thus, where an appellant relies on any ground, it must be properly raised either by way of a ground of appeal or a cross appeal in a case of a respondent.
See. BHOJSONS PLC. V. DARUEL – KALIO (2006) 5 NWLR (PT. 973) 330.
This is precisely the reason why a ground of appeal must be couched in such a way as to attack the judgment of a court on the issue decided by it. See. F. B. N. v. MAY MED. CLINICS (1996) 9 NWLR (Pt.471) 195 FOLBOD INVEST. LTD. v. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (Pt. 478) 344 at 351.
BOSIEL v. KACHALA (2006) 1 NWLR (Pt.962) 587
NGIGE V. OBI (2006) 14 NWLR (PT.999) 1.
In the instant case, Ground 2 of the appellant’s Grounds of Appeal was not couched in a way to attack the judgment of the customary court on the issue if any decided by it. The said ground cannot also be said to be precise, clear, unequivocal and direct statement of the decision being attacked.
See: KALU V. UZOR (2006) 8 NWLR (Pt.981) 66.
The Learned Judge was thus right to have held under appellant’s” issue No. 3, that there was no ground of appeal that complained that the customary court had before it two conflicting stories of how the respondent became owner of the land.
On the first leg of appellant’s issue No. 1, the Learned Trial Judge was equally right to have held that the respondent did not lead evidence in support of the pleadings tendered as Exhibit B which was filed in the High Court, pleadings do not constitute evidence.
In the instant case, the Learned judge was justified to so hold not merely because, truly, pleadings is not evidence nor because the said pleadings Exhibit B was struck out and not at any moment utilized as evidence on oath. But, perhaps more important on this occasion because exhibit B, the respondent’s statement of claim in a previous suit which was filed but not used is a document made by the respondents’ lawyer and not the respondent’s and an admission of fact properly so called cannot be based on a document not made by the respondent.
This, is because an admission based on a non – existing fact or which offends other rules or provisions of the law is irrelevant and cannot be strictly regarded as an admission in law.
See. NIKI TOBI JSC in ODUTOLA v. PAPERSACK LTD. (2006) 18 NWLR (PT.1012) 470.
It was on account of this that the Learned Judge held and rightly in my view that “the value of Exhibit B is limited to the fact that the respondent once instituted an action against the appellant in the High Court. The only evidence of the respondent is the one he led before the trial court”
Issue No. 1 is resolved against the appellant.
On issue No 2. Learned counsel for the appellant submitted that the Learned Judge was wrong to hold that the judgment was given to the respondent on the basis of his counter – claim. That, from the judgment of the customary court, the reason for the judgment was not due to the description of land in the respondent’s counter claim.
Counsel submitted that the boundaries claimed by the respondent are within the boundaries claimed by the appellant.
Counsel urged us to believe evidence of PW1, a 102 year old witness and PW2, an 80 year old witness as these witnesses are deemed to know whom they share boundaries with.
He referred to the case of ELEH v. ANYADIKE (1999) 5 NWLR (PT.603) 454 at 456 – 457
He said in view of the fact that the learned trial court suo motu raised the issue of boundaries he ought to invite parties to address him on it. That, the appellant was not given fair hearing in deciding issue of boundaries without the address of Parties.
The response of the learned counsel to the respondent’s to appellant’s issue No.2 would be seen in the respondent’s treatment of Issues 1 and 2. Learned counsel for the respondent submitted that the Learned Judge correctly held by relying on uncontroverted evidence of the respondent which gave detailed description of the land as per the boundaries he claimed and which was confirmed upon visit to locus – in – quo. That, the respondent evidence in support of boundaries as contained in his counter claim was not challenged under cross examination. Moreover, the evidence of DW3 lends credence to the respondent’s evidence and was also not challenged.
He referred to the cases of AGUOCHA v. AGUOCHA (2004) 43 WRN 17 at 42 IKUOMOLA V. ONIWAYA (1990) 4 NWLR (PT.146) 617, 624, ODULAJA V. HADDAD (1973) 11 S.C. 357, OMOREGBE V. LAWANI (1980) 3-4 SC 108 the court will act on credible unchallenged and uncontroverted evidence.
Learned Counsel for the Respondent submitted further that the trial Customary Court cleared all ambiguities and substituted “the eye for the ear” by the Court’s visit to the locus in quo where all the crops planted by the Respondent were physically seeing by the court.
On the usefulness of visit to locus in clearing ambiguities if any, Respondent’s counsel referred to the cases of UKAEGBU v. NWOLOLO (2009) Vol. 169 LRCN 210 at 252. ABIGAIL BRIGGS V. OPUFAA BRIGGS (1992) 3 SCNJ 75 at 84 – 85.
Counsel submitted that there is no conflict in the evidence as to how the Respondent became the owner of the disputed land. That, from the totality of the Respondent’s evidence it is clear that the Respondent became the owner of the disputed land in 1940 and same was giving to him by his father who first owned the land by been the first settler on the land and the respondent planted on the land thereby ‘disvirging’ the land and has since farmed on the land undisturbed.
Counsel submitted that the respondent’s title as corroborated by Exhibit ‘A1’ ‘C’ ‘D’ and ‘E’ proved ownership as well as acts of continuous possession, the burden of proving otherwise is on the appellant which burden, he failed to discharge.
He referred to section 143 of the Evidence Act 2011.
Finally, on the score, learned counsel for the respondent submitted that the evidence of DW3 that the land did not belong to the Akinde family but to the respondent and that the appellant sold the portion given to him with the permission of the respondent when the appellant was owing a Bank sometimes in 1984 did put an end to the appellant’s claim of title to the land in dispute.
In deciding Appellant’s Issue No. 2 one must be quick to point out that the statement of the Learned Judge at page 74 of the records that “the evidence of the appellant is with regard to the land he claimed in his process as belonging to Akinde family. It is apparent that the judgment of the court is specifically on the counter claim since the description of the land granted to the respondent fits the description of land he claims to be his own in the counter – claim” does not derogate from the fact that the lower customary court properly evaluated the evidence of the parties before granting the respondent’s counter – claim.
Indeed, the success of the respondent’s counter – claim truly indicated that it was in respect of the piece of land described by the respondent, notwithstanding the argument of the learned counsel for the appellant before us in this appeal that the description of the land of the appellant fell into the description of the land described by the respondent.
It is not equally the case here, as suggested by the learned counsel for the appellant that the judgment of the lower customary court was based on the inconsistent evidence offered by the respondent in the course of cross – examination.
First, the evidence of the respondent before the lower customary court was not inconsistent. Secondly, and as rightly pointed out by the learned Judge the appellant did not furnish any ground of appeal to the High Court on any issue of inconsistency of the respondent’s evidence and clearly such an issue does not arise in this court.
More importantly, the lower customary court properly evaluated the evidence of the parties before it and the totality of the records made it clear that even if there were any conflicts in the traditional histories of the parties, recent events on the disputed land, tilted the probabilities in favour of the respondent, For example, the appellant could not identify any crops belonging to him on the land at the visit to the locus in quo. Exhibit A1, C, D, and E clearly supported the case of the respondent. Finally, the evidence of DW3 was properly declared by the lower customary court as the “truth” because it was indeed relevant and admissible as a statement against interest of maker with special knowledge under the provision of section 42 of the Evidence Act 2011 and therefore an exception to the rule against hearsay.
Issue No 2. is resolved against the appellant.
On Issue No. 3 learned counsel for the appellant submitted that the learned Judge was wrong to have held that he has no reason to interfere with the judgment of the trial customary court. That, from the totality of evidence before the court, it is clear that the trial customary court jostled between two conflicting stories of how the respondent became owner of the land.
The appellant submitted that, the respondent claimed in evidence in Chief that the land was given to him by his late father while under cross – examination he came to the land as a virgin land and that all land in Idanre belong to Owa of Idanre but where any person cropped on it, the land became that person’s land.
Counsel submitted that it is trite law that where a party projects two competing histories of ownership in support of his claim he has failed to make out a case he sets out to make, if he is the plaintiff, his claim must be dismissed; if he is the defendant, he would have made out no defence against the traditional history of the plaintiff.
On this, counsel referred to the case of OHIARI v. AKABEZE (1992) 2 NWLR (PT.221) 1 at 4 – 5.
He submitted that Exhibit ‘B’ and ‘C’ tendered by the respondent to show that DW1 worked as labourer were all events that took place after the death of Martins Akinde and that the claim of the respondent that he gave land to Martins Akinde which land he sold to pay debt was not proved.
That, there was no evidence to support the respondent position that the said Martins Akinde was owing a Bank.
Counsel submitted that the Learned Judge failed to consider the case of the plaintiff appellant in arriving at the decision. That, conflicts may exist on arrangement of the head of family, this however cannot be a basis for disbelieving the appellant. This is because such conflicts are not material or substantial as not to assign probative value to a party’s case. He referred to the case of SALAWU v. YUSUF (2007) ALL FWLR (Pt.384) 230 at 237. He urged this court not to believe evidence of the respondent that the land where OLOFIN GRAMMAR SCHOOL is built was given to the school by Owa of Idanre.
On Issue No. 3, learned counsel for the respondent submitted that one of the five ways by which a party may prove his title to land is to adduce credible evidence which the respondent had established through traditional evidence.
He referred to the case of OSENI v. SOLARIN (2004) 25 WRN 148 at 163.
He submitted that where there are conflicts in traditional history in the evidence given by parties the best way to test the traditional history is by reference to fact in recent years. He referred to the case of OLALEYE v. ADEJUMO (2004) 38 WRN 133 at 156 and said that Exhibit A1, C, D and E further supported the respondent’s case.
On the evidence of DW3, counsel submitted that traditional history of ownership of a disputed land is an exception to the rule on hearsay. He referred to the case of OYADIJI v. OLANIYI (2004) 49 WRN 133 AT 145 and concluded that the respondent’s case preponderates over and above the appellants case.
I have already provided an answer to appellant’s issue No. 3 in my treatment of issue No. 2.
Perhaps, I should add that the case of OHIARI v. AKABEZE (Supra) referred to by the learned counsel for the appellant under this issue is distinguishable and not applicable to the facts and circumstances of this case. This is because, there was no time that the respondent in this case ever presented or projected two competing histories of ownership in support of his claim as contended by the appellant’s counsel.
In the instant case, I must repeat, the trial customary court properly assessed and evaluated the evidence of the parties, which made it easy for the appellate High Court to confirm the decision of the trial customary court.
See: EBBA v. OGODO (1984) 1 SCNLR 372, ILODO v. EFAROFIA (1980) 5 SC 42 AKTNLOYE V. EYIYOLA (1968) NWLR 92, BALOGUN v. AGBOOLA (1974) 1 ALL NLR (Pt.2) 66 AKPUNA V. NZEKA (1983) 2 SCNLR 1, AMIDA v. OSHOBOJA (1984) 7 SC 68 AGBAJE V. AJIBOLA (2002) 2 NWLR (PT.750) 127, THOMPSON V. AROWOLA (2003) 7 NWLR (PT.818) 163.
Finally, this case presents a situation of concurrent findings of fact of two lower courts, unless such findings are perverse and not supported by credible evidence or have resulted in miscarriage of justice, this court ought not to interfere.
See: WOLUCHEM V. GUDI (1981) 5 SC 291, KENON v. TEKAM (2001) 14 NWLR (PT. 732) 12.
Issue No. 3 is also resolved against the appellant.
Having resolved the three (3) issues in this appeal against the appellant, the appeal lacks merit and it is accordingly dismissed.
There shall be N30,000 costs in favour of the respondent.
SOTONYE DENTON WEST, J.C.A.: I have read in advance the judgment delivered by my learned brother Mojeed Adekunle Owoade, JCA and I agree with his reasonings and conclusions.
By way of emphasis, the learned trial Judge did not misdirect himself when he held that with regards to Issue 3, that since the appellant did not complain that the customary court had before it two conflicting stories of how the respondent became owner of land, it was wrong for the learned counsel to formulate an issue based on a non-existing ground.
Drawing more light on this, the resolute posture of the court is to the effect that issues which are not canvassed at the trial court or lower court are not to be raised on appeal, as the court frowns at such as incompetent and therefore to be ignored. See: Egbunike v. African Contractor Bank Ltd. (1995) 2 NWLR (pt. 375) 134 @ 59.
Though, to every general rule there is an exception, these are where leave is specifically sought and obtained before the appellate court and also where the point raised borders on jurisdiction which is very fundamental. See: Fadiora v. Gbadebo (1993) 3 S.C. 219; Koya vs. U.B.A Ltd. (1997) 1 S.C.N.J 1, 22. Consequently, this instant appeal does not satisfy this criteria, I too dismiss this appeal and abide by the order made as to cost.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read before now the lead judgment just delivered by my learned brother OWOADE, JCA and I quite agree with his reasoning and conclusion thereon. The appeal indeed lack merit. I too dismiss same with cost as ordered.
Appearances
Pius Olu Daodu with T. A. OladimejiFor Appellant
AND
Chief O. J. Jejelola with G. O. OmoeduFor Respondent
