CHIEF AMOS TEMIDAYO OLAKUNORI & ORS v. CHIEF WILSON SADIBO
(2014)LCN/7209(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of May, 2014
CA/AK/36/10
RATIO
EVIDENCE: ASSESSING THE TOTALITY OF EVIDENCE LED BY EACH PARTY
It is trite that in evaluation of evidence of parties, the trial court is enjoined to consider the totality the evidence led by each party. It then places it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. This evaluation of evidence entails the assessment of same so as to give value or quality to it, rather than swallow the story of one party hook, line and sinker. Such evaluation of evidence should necessarily involve a reasoned preference of one version to the other. See LAGGA vs. SARHUNA (2008) NWLR (pt. 1114) 427 at 460, paras. E-H. per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
EVIDENCE: ADMISSIBILITY OF EVIDENCE ON FACTS NOT PLEADED
It is trite indeed that evidence on facts not pleaded is inadmissible as it goes to no issue and the court must discountenance same if it had already been inadvertently admitted. See Sumonu vs. Sapo (supra), Temile vs. Awani (supra); Trade Bank Plc. vs. Yisi (Nig.) Ltd. (2006) 1 NWLR (pt. 960) 101 at 140; and Ali vs. Hussaini (2003) FWLR (pt. 138) 1398 at 1409. per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF AMOS TEMIDAYO OLAKUNORI
2. ALHAJI OMOLOJA
3. MISS TAYE OLOYE
4. MRS. OMINRIN
5. MR. TUNDE ENIAYEWU
6. MR. SAKA
7. MR. OLATUNJI Appellant(s)
AND
CHIEF WILSON SADIBO
(For himself and on behalf of Sadibo Family of Okeogun, Owo) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the judgment of Hon. Justice Olasehinde Kumuyi of the High Court of Ondo State, Owo Judicial Division, delivered 25th March, 2010.
The appellants herein were the defendants at the trial court while the respondent was the plaintiff who sought reliefs as follows against the former:
1. A Declaration that the plaintiff is the lawful and beneficial owner of the vast area of land situate, lying and being at Oke – Ogun Street, Owo in between Owo/Benin Express Road and Agbogun Stream/River, Owo, Ondo State of Nigeria (hereinafter called the land) by virtue hereby he is entitled to the certificate of occupancy in respect thereof.
2. Perpetual Injunction to restrain the defendants either by themselves or by their servants or agents or privies or otherwise however and those claiming through them from further act of trespass on the said land or from carrying on any construction work or development on the land.
3. N500, 000.00 (Five Hundred Thousand Naira) damages (severally and jointly) for continuing trespass committed by the defendants, their agents, servants and those claiming through them.
The appellants did not file a counter-claim.
Having heard the parties the trial court in a considered judgment decided in favour of the plaintiff/respondent. The appellants are now jointly before this court to vent their grievances against the said judgment. They thus filed a Notice of Appeal dated 8th June, 2010 containing six grounds of appeal.
In line with the rules of the court, parties filed and exchanged briefs of argument. Appellants’ Brief of Argument dated 21st July, 2011 and their Reply Brief on Points of Law dated and filed 26th September, 2011 respectively as well as the Respondent’s Brief of Argument dated 16th August, 2011 and filed 19th August, 2011 were adopted and relied upon by either side at the hearing of the appeal on 26th February, 2014. OBA S. K. A. ADEDOYIN settled the appellants’ briefs while J. O. AJEWOLE, ESQ. settled the respondent’s brief.
Appellants’ donated three issues for determination of the appeal. The issues are:
i. Whether the respondent established the identity of the land in dispute with certainty and precision as required by law on the totality of the pleadings and evidence before the trial court. (Ground 1).
ii. Whether the trial court was perverse in evaluating the conflicting traditional histories of the land in dispute by the respective parties, particularly in failing to resolve same by resulting (sic) to acts of ownership of the parties, otherwise known as the rule in KOJO V. BONSIE to find who between the two parties has a better title to the land in dispute. (Grounds 2, 3, 4 and 5).
iii. Whether the evidence of PW2 as to the grant of agricultural land to his father by the respondent’s family goes to no issue and ought to be expunged from the court’s record in the circumstances of this case.
On the part of the respondent they also identified three issues for determination of the appeal and the issues are:
i. Whether the identity of the land in dispute was established by the respondent before the trial court.
ii. Whether the respondent on the totality of the evidence adduced at the trial established his title to the land in dispute by traditional evidence.
iii. Whether the evidence of PW2 on grant of land to his father by the respondent’s father is sustainable having regard to the pleadings in the statement of claim.
The issues as formulated by both parties are substantially the same. I shall however, determine the appeal based on the issues formulated by the learned counsel for the appellants.
ISSUE 1 (ONE)
Whether the respondent established the identity of the land in dispute with certainty and precision as required by law on the totality of the pleadings and evidence before the trial court.
Appellants’ take on the issue is that the learned trial Judge was wrong to have held that the identity of the land was not in serious contention in this case and that the respondent had established same to the satisfaction of the court.
Learned counsel submits that in the instant case, the identity of the land in dispute as regards its area, features and location was seriously in issue based on a community-reading of paragraphs 4 to 9 of the amended statement of claim as contained on pages 28-36 of the record on the one hand and paragraphs 5, 6, 30, 31, 32, 33, 34, 37, 38 and 39 of the amended statement of defence on the other hand as well as the denial of the said averments in the amended statement of defence by the respondent in paragraphs 7, 8, 9 and 11 of his reply to the statement of defence.
Apart from the area or dimension of the disputed land, counsel submits that quite a lot of the features thereon as stated by the feuding parties were completely different. That from the pleadings of the parties, a host of properties and other structures pleaded by the appellants in paragraphs 30, 31, 32, 33, 37, 38 and 39 of their amended statement of defence to be on the land in dispute were denied in strong terms by the respondent in paragraphs 7, 8, 9 and 11 of the respondent’s reply to the statement of defence.
Learned counsel pointed out that significantly, in paragraph 8 of the amended statement of claim, the respondent averred that Agunkan stream (the 2nd boundary given by the appellants) was not in the area in dispute.
Again, by the averment in paragraph 21 of the same amended statement of claim (p. 21 of the record), it is clear that the respondent’s contention is that Agbogun and Agunkan streams are two different streams, the latter, as alleged by the respondent, not being in the area of the land in dispute. Counsel further referred to the evidence of the PW3 as it appears on pages 65-69 of the record which he said is unequivocal on the point. Counsel again noted that the Agbogun stream is the 3rd boundary as stated by the respondent, while the appellant gave Agunkan stream as one of the boundaries and the ancient moat as another boundary. Counsel contends that notwithstanding the evidence before him the learned trial Judge still held that the plaintiff had established to the satisfaction of the said court the identity of the land in dispute. (See p. 229 of the record).
On differences as to the features on the land, the learned counsel for the appellants submits that the evidence of the parties shows that they were clearly not ad idem on the area, boundaries, features and location of the land in dispute. Ipso facto, the identity of the land was seriously in issue, contrary to the finding of the trial Judge.
Counsel also submitted that there are two ways of establishing the identity of land in dispute, that is:
a. By oral description of the land; and
b. By survey plan.
He submitted further that where the oral evidence of the plaintiff’s witnesses contradicts or is at variance with one another or conflicts with the plaintiff’s survey plan on the issue of the boundaries or the features of the land, then the plaintiff has failed to establish the identity of the land in dispute and his claim for declarations of title, trespass and injunction must fail. See:
1. Ogedengbe vs. Balogun (2007) 9 NWLR (Pt. 1039) 380, 393 para. G-H; and
2. Sanni vs. Ogunbode (2001) 8 NWLR (Pt. 714) 74, 84-95, para. F-B.
Learned counsel went on to point out what he conceives as material contradictions and inconsistencies in the evidence of PW1, PW3, PW4 (Surveyor), PW5, PW6, PW7 and PW8 as well as the respondent’s Survey plan (Exhibit F) as to the boundaries of the land and the physical features thereon and said that the finding of the learned trial Judge to the effect that the Agunkan and Agbogun streams are the same is perverse as same is not supported by evidence.
Contends that as crucial as Agukan stream is in this case, based on the pleadings and evidence of parties, Exhibit F, the respondent’s survey plan did not indicate the stream even though the PW4 unequivocally said that he fixed or indicated all the structures or features on the land on the said Exhibit F.
Learned counsel for the appellants submitted on the premises of the foregoing that the respondent’s survey plan is bad and inaccurate and that the trial court could not found an action for declaration of title and injunction on same. He urged on us to so hold. See:
1. Olubosoye v. Olorunfemi (1989) 1 NWLR (pt. 95) 26 at 42 paras. C-D; and
2. Salami vs. Oke (1997) 4 NWLR (pt. 63) 1 at 17 paras. D.
It was again the argument of the counsel that although the respondent denied the Benin/Owo Express Road boundary of the land given by the appellants, yet, the first leg of his claim is for a declaration of ownership of the “vast area of land being at Okeogun Street, Owo in between Owo/Benin Express Road and Agbogun Stream/River, Ondo State (hereinafter called the land) by virtue whereby he is entitled to the certificate of occupancy in respect thereof.” (See paragraph 51 of the amended statement of claim on p. 36 of the record). Argues that the respondent thereby tied his claim to the same Benin-Owo boundary of the land, which boundary he vehemently denied in his pleadings and evidence. Moreover, the respondent only gave the fourth boundary of the land as a continuation of his land. Therefore the fourth boundary of the land is uncertain, imprecise and speculative. Consequent upon this counsel argued that the respondent’s claim for declaration also ought to fail. See Amata vs. Morekwe 14 WACA 581 at 582-593.
Pressing on in their submission, the learned counsel for the appellants submitted that another important problem of the identity of the land in dispute is the fact that both in his pleadings and evidence, the respondent claimed/admitted to have granted parts of the land to several persons and institutions who had obtained certificates of occupancy in respect of the portions allegedly granted to them. But the same respondent still came to court praying for a declaration of ownership in respect of the entire land “by virtue whereby he is entitled to the certificate of occupancy in respect thereby.” See pages 25-51 of the amended statement of claim and the evidence of the respondent on page 40 of the record. Contends that the respondent failed in his pleadings, survey plan and evidence to indicate which parts of the land he had granted/alienated to such persons/institutions.
Relying on the authority of Dada vs. Dosumu (2006) 18 NWLR (pt. 1010) 134 at 159, paras B-E, counsel answered his question to wit: can the respondent still be entitled to declaration of ownership and certificate of occupancy in respect of the land he admittedly divested himself of, in the negative.
In further contention, the counsel stated that the mere fact that the witnesses including those of the appellants said they knew the land in dispute but went ahead to give conflicting descriptions of the land in terms of its area, boundaries and features does not amount to admission in law for the purpose of establishing the identity of the land in dispute. See:
1. Kamalu vs. Umunna (1997) 5 NWLR (pt.505) 321 at 369 paras. F-H; and
2. Odutola vs. Papersack (Nig.) Ltd. (2006) 18 NWLR (pt. 1012) 470 at 494, paras. A-C, wherein the court held thus:
“…Where an admission against interest does not reflect or vindicate the legal position, it is regarded for all intents and purposes as superfluous and the court will not assign any probative value to it.”
Against this backdrop, the learned counsel for the appellants urged on us to resolve issue one in favour of the appellants and hold that the respondent failed woefully to prove the identity of the land in dispute for the purpose of the relief sought by him.
In reaction to issue one, the learned counsel for the respondent while relying on the case of Ate Kwadzo vs. Robert Adjei (1944) 10 WACA 274, reiterated the two basic ways of establishing the identity of a land in dispute i.e. oral description or by survey plan of the land. Counsel referred to the case of Ezendu vs. Obiagwu (1986) 2 NWLR (Pt. 21) 208, 220 paras. D-F, where Oputa, JSC, (as he then was) had this much to say:
“….. The onus on the plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there I will make bold to say that the mere production and tendering of the plaintiff’s plan in evidence is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
It was against the foregoing, that the learned counsel posed the question, when then is identity an issue in a declaration of title? Counsel answered this question by stating that once a plaintiff in a suit files a plan, the identity of the land will be an issue if and only if the defendant specifically disputes either the area or the size or the location or the features on the plaintiff’s plan. He relied on Oguleye vs. Jaiyeoba (2011) 9 NWLR (Pt. 1252) 339 at 356 paras. C-F for the proposition.
Respondent’s counsel referred to paragraph 6 of the respondent’s amended statement of claim as well as his evidence before the trial court as reflected at pages 38-39 of the records to submit that the evidence and pleadings thereof are in tandem on this score. On the other part counsel referred to paragraph 6 of the amended statement of defence as well as the evidence of the DW1 as contained at page 90 of the records as it relates to the area of the land in dispute. Learned counsel contended that it was on these seemingly divergent boundaries that the trial court appraised and evaluated the evidence of the parties and still came up with the conclusion that there was no difficulty in identifying the land in dispute. Counsel contends further that some of the appellants’ witnesses agreed with the boundaries of the land as given by the respondent. See evidence of the DW1 at page 106, lines 5 and 6 of the records and the evidence of DW4 at page 130, lines 10-13 of the records.
Learned counsel for the respondent pointed out that the appellants have neither faulted nor queried the accuracy of the pain staking findings of the trial court on the boundaries of the land. Rather what the appellants have done was to challenge the correctness of the comparison of the evidence of the parties by the trial court in making the finding. In this vein he cited the trite law that finding of facts not appealed against stands admitted and undisputed. Counsel relied on the authority of Commerce Assurance Ltd. vs. Alli (1992) 3 NWLR (Pt. 232) 710 at 720; and Dakur vs. Dapal (1998) 10 NWLR (Pt. 571) 573 at 576. It was against this backdrop that the learned counsel urged the court to sustain the finding of the trial court that based on the available evidence the issue of the identity of the land was not in serious issue. See also Onwujuba vs. Obienu (1991) 5 SCNJ 40 at 45 in holding that the respondent satisfactorily proved the boundaries of the disputed land.
On the size of the land in dispute learned counsel submits that in order to join issue with the plaintiff on this, there must be a proper traverse which must be made either by a denial or non-admission either expressly or by necessary implication. Thus, where a party refuses to categorically deny the pleading of his adversary or an issue, it will amount to an admission of the fact raised in such pleading. Counsel relied on the following authorities to buttress this proposition: Lewis & Peat (Nig.) Ltd. vs. A. K. Akhmien (1976) All NLR 365, 369; Bamgbesin v. Oriare (2009)? NWLR (Pt. 1158) 370, 395-396; Lagos City Council vs. Ogunbiyi (1969) All NLR 287, 289; Adelaja vs. Alade (1999) 4 SCNJ 225, 240; Khalil Yassin vs. Barclays Bank DCO. (1968) NNLR 46, 56; and CBN vs. Dinneh (2010) 17 NWLR (pt. 1221) 125, 139.
He urged on the court to hold that the appellants have admitted the size of the land in dispute as given by the respondent.
In further contention the learned counsel for the respondent argues that the area or size of a piece of land cannot be greater than the area within its boundaries. That once the trial court has found that the boundaries of the land in dispute are the same though differently referred to or called by different names, the area remains constant. Counsel therefore urged on us to hold that all the ado about 38.974 hectares is of no moment as the parties are ad idem on the size of the land in dispute. Counsel relied on Ayuya vs. Yorin (2011) 10 NWLR (Pt. 1254) 135, 166-167 paras. E-C, which he submits to be on all fours with the one in this appeal and as it relates to the issue of identity.
That there were contradiction and inconsistencies in the respondent’s case before the trial court, the learned counsel for the respondent re-stated the trite law that not every contradiction or inconsistencies that is of consequence but only material contradiction. See Lawson vs. Anfani Continental Co. Nig. Ltd. (2002) FWLR (Pt. 109) 1736 at 1768, paras. F-G; and Ogbu vs. The State (2003) FWLR (Pt. 147) 1102 at 1118, paras. B-C. Counsel submits that in the entire gamut of the respondent’s case, the appellants have not shown any material contradiction let alone how such contradiction affected the judgment of the trial court. He finally urged on us to resolve issue No. 1 in the affirmative.
Suffice it to say that the appellants in their reply on points of law, rather than pick and reply on law any new issue which they perceive to have arisen in the respondent’s brief, went on to repeat issues they already canvassed in their respondent’s brief of argument. I am therefore mindful to discountenance the respondent’s purported reply brief on law.
RESOLUTION OF ISSUE 1 (ONE)
Whether the respondent established the identity of the land in dispute with certainty and precision as required by law on the totality of the pleadings and evidence before the trial court.
The position of the law is that a plaintiff seeking declaration of title to land has the primary duty to prove clearly and unequivocally the precise area to which his claim relates. However, that burden will not arise where the identity of the land in dispute was never in issue. Issue of identity will only arise where the defendant raises it in his statement of defence and supported by evidence. See Dada vs. Dosumu (2006) 9 SC. 1 at 12. In order to determine whether the issue of identity arose in the instant appeal I need to refer to the pleadings of the Parties.
The respondent pleaded as follows in paragraphs 4, 5, 6, 7, 8 and 9 of his amended statement of claim:
4. The plaintiff avers that the land the subject matter of this suit which situate and being at Oke-Ogun Street, Owo lying in between Owo-Benin Express Road and Agbogun Street is a portion of a vast parcel of land belonging to my family which
5. Spreads from St. Louis Hospital Junction, Owo to Janjanran Stream and joined Agunka stream at old Owo-Akure Road, Owo.
6. The plaintiff states that the portion of the vast parcel of land, the crux of dispute in this case is particularly delineated by survey pillars nos. ODB 667, ODB 5110, ODB 5111, ODB 5112, ODB 5113, ODB 5114, ODB 5115, ODB 5116, ODB 5117, DQA 4010 and BP 1640 measuring approximately 31.818 hectares prepared by Ayo Fadipe & Associate dated 19/10/2004.
7. The plaintiff further avers that the portion of the vast land, the crux of dispute in this case is bounded as follows:
First side by Janjaran Stream, on the 2nd side by Agbogun Stream/River, on the 3rd side by Uselu Community land, and on the 4th side by Sadipo family land which land situate and being at Oke-Ogun Street, Owo lying between Agbogun Stream and Owo-Benin Express Road.
7. The plaintiff states further to paragraph 6 above that Janjanran Stream the 1st side of the land in dispute flows from Owo-Benin Express Road into and joined Agunka Stream at the Old Owo-Akure Road and this is further joined by Agbogun Stream which flows in parallel direction with the old Owo-Akure Road, Owo.
8. The plaintiff avers that only the land within the area covered by Janjanran Stream and Agbogun Stream is in dispute and does not extend to the land in area covered by Agunka Stream.
9. The plaintiff states that the land in dispute is the undeveloped or yet to be developed portion of the family vast land, the rest of which are all developed from St. Louis Hospital Junction to the technical College, Owo. (See pages 28-29 of the records).
In substantiation of their pleadings, the respondent in his evidence before the trial court described the area of the land in dispute as follows:
“The land in dispute has the following boundaries; the 1st side is Janjanran Stream with Osuporu family. The 2nd side by Uselu Community. The 3rd side is Agbogun Stream. The 4th side is the continuation of my land. I have surveyed the land in dispute. I have given part of this land to some people. The size of this land is 31.818 hectares. My family has building in Okeogun.” (See pages 38-39 of the record).
In the appellant’s amended statement of defence contained at page 21 particularly paragraphs 5 and 6, the appellants made the following averments:
5. The defendants in denying paragraphs 4, 5 and 6 of the Statement of Claim aver that the land so described in the said paragraphs are not known to the Defendants and put the Plaintiff to the strictest proof thereof.
6. The Defendants in denial of paragraph 7 of the Statement of Claim aver that Elerewe Chieftaincy family is the owner under native law and custom from time immemorial of the vast area of land situate, lying and being at Elerewe Avenue off Old Owo-Akure Road, Isapien Quarters, Owo. The said land which is in dispute in this suit is bounded as follows:
1st by Janjanran stream with Osopuru family land on the other side of the stream.
2nd side by Agunka Stream with Elerewe family developed and undisputed land and Government Technical College land on the other side of the said stream and college land. [Emphasis mine].
To buttress the facts as pleaded above, the appellants through their DW1 testified thus:
“I know the land in dispute. The land is situated at Elewere Avenue, Okogun Owo…… the land in dispute is along old Owo-Akure road. The Elerewe family owns the land in dispute. The claim of the plaintiff that the land belongs to him and his family is not true.
The land in dispute has the following boundaries:
On the first side is Janjanran stream with the Osuporu family land on the other side of the stream. The second side is Agunka stream with Elerewe developed and undisputed land; and Technical College on the other side of the stream. The third side is Ancient Moat and Aborogun schrubs and the Sadipo family land on the other side of the stream. The fourth side is Benin-Owo express road with the Polytechnic on the other side of the land.” (See pages 89-90 of the record). [Emphasis mine].
The appellants in their foregoing paragraph 5 denied having knowledge of the land as pleaded in paragraphs 4, 5 and 6 of the respondent’s amended statement of claim, yet in their very next paragraph 6 the same appellants proceeded to enumerate the boundary neighbours of the land in dispute. Appellants cannot sincerely be seen to be enumerating the neighbours of a portion of land that is unknown to them. Though there appears to be some discrepancies in the neighbours as enumerated by either side, yet it is not uncommon to see parties in an action for land denoting boundary neighbours of the land in dispute by divergent or different names. The trial court carried out a satisfactory appraisal and evaluation of the evidence of the parties in line with their respective pleadings before it came to the following unassailable findings:
“… The two sides to the dispute gave evidence as to the boundaries of the disputed land. Though the descriptions of the boundaries differ, a closer look at their evidence shows that the two parties are describing the same area of land……. In my view, the only area of disagreement is whether the plaintiff’s family land terminates at the ancient moat as claimed by the defendant or extends beyond the moat as claimed by the plaintiff to Agbogun stream. Besides, the 1st defendant in his evidence-in-chief said “I know the land in dispute” and all the witnesses for both parties also said that they know the land in dispute. In my view, based on the available evidence the issue of the identity of the land is not in serious contention as canvassed by the defendants.”
On the size or area of the land in dispute, the respondent gave same vide paragraph 5 already reproduced above as 31.818 hectares and also led evidence to that effect. The appellants on the other hand did not join issue with the respondent on the figure in that they did not categorically deny same in their amended statement of defence as reproduced above. In order to join issue with the respondent on the size of the land in dispute, the appellants were expected to make a proper traverse by either a clear cut denial or non-admission either expressly or by necessary implication. It was not enough or clear cut for the appellants to aver as they did in paragraph 5 of their statement of defence to wit:
5. The defendants in denying paragraphs 4, 5 and 6 of the Statement of Claim avers that the land so described in the said paragraphs are not known to the Defendants and put the Plaintiff to the strictest proof thereof.
Notwithstanding, their evasive and ambiguous reaction to the identity of the land in dispute, the appellants as I earlier noted made a turn-around when in the very next paragraph 6 of their amended statement of defence they pleaded inter alia that “The said land which is in dispute in this suit is bounded as follows:…” The appellants in the instant appeal and as rightly found by the trial court are obviously ad idem with the respondent on the identity of the land. For the said appellants not to have specifically reacted by denying the figure given by the respondent as the size of the land shows that they admit same to be correct. Therefore, the evidence of the DW5 who gave the size of the land vide Exhibit R as 38.974 hectares goes to no issue, more so as the said figure was not pleaded in the appellants’ amended statement of defence. Aside from the fact that the figure was not pleaded by the appellants, the trial court found that the boundary neighbours of the land are the same though called by different names. From every indication the size of the land in dispute between the parties is 31.818 hectares as averred and led in evidence by the respondent and impliedly admitted by the appellants.
On a community reading of the pleadings of both parties and their evidence on record I am convinced that the identity of the land in dispute as duly established by the respondent was on the other part duly appreciated by the appellants. Issue one is therefore resolved in favour of the respondent and against the appellants.
ISSUE 2 (TWO)
Whether the trial court was perverse in evaluating the conflicting traditional histories of the land in dispute by the respective parties, particularly in failing to resolve same by resulting (sic) to acts of ownership of the parties, otherwise known as the rule in KOJO V. BONSIE to find who between the two parties has a better title to the land in dispute. (Grounds 2, 3, 4 and 6).
Learned counsel for the appellants on this front referred the court to the evidence of the PW1 and the DW2 as contained at pages 37-60 and 89-115 of the record respectively as well as the review/evaluation of the traditional histories of the parties by the trial Judge in his judgment as contained at pages 229-236. Counsel submits that the evaluations of the traditional evidence of the parties, by the learned trial Judge as well as his findings and or conclusions thereon are legally untenable. He highlighted some of the perceived perverse evaluations of the traditional histories as it relates to grant of land to Elerewe Chieftaincy and custom forbidding a Senior Chief from begging a Junior Chief for land in Owo. See the evidence of DW1 as contained on page 91 of the record. Learned counsel submits that the evaluation and conclusion reached thereon by the learned trial Judge are wrong in law. He recalled the settled law that where a witness testifies on a material fact in controversy and the opposing party failed to challenge or cross-examine the witness on that fact, the trial court has no alternative but to believe the evidence. Counsel relies on Gege vs. Nande (2006) 10 NWLR (Pt.988) 256 at 290 para. E; NITEL Ltd. vs. Ikpi (2007) 8 NWLR (pt. 1935) 96, 109-110, paras. H-B; Adejumoh vs. Ayantagbe (1989) 3 NWLR (pt. 110) 417, 435 paras. D-E.
Counsel’s further submission is that the conclusion of the learned trial Judge to the effect that the land at Oke-Ogun was a second grant and all his aspersions on the assumed second grant of land is perverse as it was not borne out of the evidence before the court.
Regarding the respondent’s evidence on the grant of the land in dispute to Sadibo Arokimola and the origin of Okeogun name of the land, learned counsel for the appellant submits that for a party to succeed on traditional history of title to land, he must give evidence which is credible, cogent, consistent and leaves no gap. See Sanni vs. Hughes (1999) 7 NWLR (pt. 61) 474 at 481, paras A-C; and Owoade vs. Omitola (1988) 2 NWLR (Pt. 77) 413 at 425, paras. G-H.
Counsel contends that the evaluation of the respondent’s evidence on the grant of the land in dispute to his family and the origin of the name Oke-Ogun of the land by the trial court and the conclusions reached thereon by his lordship were wrong and untenable vis-a-vis the appellants’ evidence on the grant of same to their Elerewere family.
Counsel recounted the evidence of the respondent as it appears on pages 39 and 59 of the record, as well as the evidence of PW6 (page 81), PW7 (page 84) and PW8 (page 88) being three of the respondent’s witnesses who he said substantially contradicted the evidence of the said respondent (PW1). Counsel argued that a proper evaluation of the pieces of evidence touching on the moat as a boundary, whether or not Oke-Ogun was a battle ground vis-a-vis the settlement of the 1st Sadibo thereon (who was an acclaimed warrior) should have raised serious doubts in the mind of the trial court as to the respondent’s denial/claim to the effect that the land does not terminate at the moat; and that it is not a natural boundary as his family had settled in Oke-Ogun before the moat was done. Learned counsel posed the question to wit: why would Sadibo Arokunmola, the royal immigrant who allegedly refused an invitation to stay at the palace with Olowo be positioned or confined to the back of the moat a defensive pit, thereby practically ostracizing him from the rest of the community?
Learned counsel contends that the evidence of the respondent and his witnesses were fundamentally contradictory to one another and that the trial court should have discountenanced same in totality since the court cannot pick and choose which of the pieces of evidence to believe. See Udoh v. The State (1994) 2 NWLR (pt.329) 666 at 683-684, paras. H-A.
The learned counsel for the appellant argued on that contrary to the findings of the trial Judge as contained at page 231 of the record that the origin and meaning of the name “Oke-Ogun” as pleaded and testified upon by the respondent and his witnesses are relevant, fundamentally and directly, connected with the respondent’s traditional history of the alleged grant of the land in dispute to his ancestors. Argues that the mode, extent and purpose of such grant and the name of their settlement are material to this case, since the trial Judge based his decision to grant the title of the land to the respondent on traditional history alone without “resulting” to acts of ownership. He referred to paragraph 13 of the respondent’s amended statement of claim at page 30 of the record and paragraph 11 of the appellants’ amended statement of defence on page 21 of the record for pleadings putting the origin and meaning of the name Oke-Ogun in issue and pages 237-238 of the record where the trial court based its judgment on traditional history alone. It was upon all these that counsel submitted that the decision of the trial court is perverse.
Regarding the respondent’s evidence on the past Sadibo who found and used the land in dispute, learned counsel for the appellant pointed out the settled law that where evidence of tradition is relied on in proof of declaration of title to land, the plaintiff, in order to succeed, is bound to plead and establish facts such as (i) who founded the land, (ii) how he founded the land, and (iii) the particulars of the intervening owners through whom he claims.
See Onwugbufor v. Okoye (1996) 1 SCNJ 1, 21; and Nruama vs. Ebuzoeme (2006) 9 NWLR (Pt. 985) 217 at 235, paras. C-D. Against this backdrop, learned counsel submitted that the names and particulars of the past Sadibos (the respondent’s predecessors) who allegedly founded and used the land in dispute as stated by the respondent in his evidence-in-chief (see page 40 of the record) is porous and leaves a questionable gap. On analyzing the said respondent’s evidence thereon, the learned counsel asked “could the respondent, therefore, have sincerely claimed to become the 5th Sadibo to use the land as far back as 1981?” Upon his arithmetical analysis the learned counsel for the appellant submitted that the traditional evidence of the respondent on the alleged Sadibos who founded and used the land as well as their particulars is fictitious, concocted and unreliable and that the trial court ought to have found so.
On the need for the trial court to have “resulted” (sic) to acts within living memory in resolving the conflicting traditional history of the parties (the rule in Kojo vs. Bonsie), learned counsel submitted that in view of the above observed conflicting evidence of tradition of the parties on the land in dispute especially with regard to the area, boundaries and features as well as the alleged grant to the predecessors of the contending parties, the only proper, judicial and judicious approach the learned trial Judge ought to have adopted in resolving the conflict was by “resulting” to the respective acts of ownership of the parties as stated in their evidence. See Ojokobolo vs. Alamu (1998) 9 NWLR (Pt. 566) @ 26 (sic) at 230, paras. G-H; and Sanusi vs. Ameyogun (supra).
Learned counsel opined that since the respondent did not adduce evidence of recent acts of ownership within living memory, the court should have believed the acts of ownership adduced in evidence by the appellants and dismiss the respondent’s claim/evidence of tradition on the land in dispute.
He urged the court in totality to resolve issue two in favour of the appellants.
In reaction to this issue, learned counsel for the respondent started by stating the obvious which is that a plaintiff who seeks to rely on traditional history in proof of his title to a disputed land, is expected to plead and give evidence of:
i) Who founded the land.
ii) How he founded the land.
iii) Particulars of intervening owners through whom he claims.
Counsel then went on to recount the testimony of the respondent as contained on pages 39-40 as evidence in satisfaction of the requirement. Learned counsel commended to the court the authorities of the privy council case of Kojo vs. Bonsie (supra); Ogba vs. Onwuzo (2000) FWLR (pt. 17) 176 at 181; and Fasanya vs. Adekoye (2001) FWLR (Pt. 34) 516 at 536-537.
The learned counsel also referred to the testimony of the respondent contained at page 45 of the record. He further contended that the family of the 1st appellant admitted trespassing on the land in dispute vide Exhibit B in as recent a time as 1987. See pages 233-234 of the record. Counsel argued that although, a party seeking declaration of title over a piece of land must satisfy the court by evidence and not admission in the pleadings of his adversary, yet where a piece of evidence is not challenged or admitted as is done in Exhibit B in this case, only minimum proof is required. For this proposition learned counsel relied on Linus Onwuka vs. Omogu (1992) 3 SCNJ 98 at 127.
Counsel referred to the holdings of the trial Judge as contained on page 237 of the record and urged on us to hold that facts and acts of the respondent in recent years pointed to his unmistakable ownership of the land.
Again relying on the authority of Lagga vs. Sarhuna (2008) NWLR (pt. 1114) 427 at 460, paras. E-H., counsel submitted that the trial court strictly adhered to the principles stated therein in its evaluation of the evidence of the parties in this case. Learned counsel touching on the evidence of grant of the land in dispute to Elerewe chieftaincy, submitted that it is not true that the evidence was unchallenged as submitted in paragraph 4.7 of the appellants’ brief. He referred to the evidence of the respondent on that aspect as contained at page 39 of the record as well as the evidence of the PW3 as contained at page 69 of the record and submitted that it was after the consideration of the totality of the evidence adduced by the parties that the trial court came to the conclusion learned counsel urged on us to uphold.
It was again the contention of the learned counsel for the respondent that the evidence of DW3 on the issue that it is not the custom in Owo for a High Traditional Chieftaincy to ask for land from a minor chief was challenged under cross examination. See page 127 of the record where DW3 responded as follows:
“I confirm that it is not the custom in Owo for a minor chief to grant land to a senior chief.”
Counsel also submitted that PW2 in his evidence also denied the existence of the custom in question. He said that PW2 went further to show that his own father, a senior chief requested for land from the father of the respondent, a junior chief to raise a farm called “oko – eti -ile” – (a farm near the town). See pages 64 and 232 respectively of the record.
Learned counsel for the respondent impressed upon the court that it is certainly not the law that all admissions are necessarily conclusive against the maker. Relying on the authority of Nwankwo vs. Nwankwo (1995) 5 SCNJ 44, 62, counsel submitted that each and every admission must be carefully evaluated and considered by the court against the particular circumstances under which it is made. It is against this backdrop that the counsel urged on us to hold that on the grant of land to Elerewe chieftaincy and the Owo custom on senior chiefs not taking land from junior chiefs, the trial court properly evaluated the facts and drew the appropriate conclusions from them.
In learned counsel’s reaction to the evaluation of the name of the land in dispute “Oke-Ogun” he referred to the testimony of the respondent as it appeared at page 39 of the record. He highlighted the respective testimonies thereon by the PW7 and PW8 and submitted that the seeming inconsistencies in the pieces of evidence as highlighted hinges on a play of two Yoruba words “oke” meaning hill and “ogun” meaning: (i) twenty, (ii) battle or war and, (iii) god of iron. He said further that irrespective of the three distinct meaning of the compound word “Okogun” in Yoruba lexicon, that the location it describes remains constant. It was in that light that the trial Judge evaluated the evidence and reached the unassailable conclusion as contained at page 231, of the records.
Leaning on the authority of Eleran vs. Aderonpe (2008) 11 NWLR (Pt. 1097) 50 at 69, paras. G-H, learned counsel contended that although the appellants alleged four instances of improper evaluation of evidence, yet they did not demonstrate how the improper evaluation which they deny, would have led the trial court to a different conclusion.
Albeit, counsel submitted in the alternative lest his foregoing submission does not find favour with us, that the task of evaluation of evidence adduced at trial is primarily that of the trial court, which had the advantage of seeing and listening to testimonies of the witnesses. However, where a trial court, in spite of its vantage position, neglects to evaluate evidence adduced, or undertakes the task of evaluating the evidence led by the parties in course of trial in such a manner that works injustice to any or both parties, or takes into consideration irrelevant or extraneous matters, an appellate court would intervene to review the evidence adduced. See Chijioke vs. Soetan (2006) 10 NWLR (Pt. 990) 179 at 215, para. C-E.
Counsel urged the court to re-evaluate the evidence of the parties submitting that the complaints of the appellants in this regard are within the province of matters which an appellate court can re-evaluate and then uphold the finding of the trial court.
RESOLUTION OF ISSUE 2 (TWO)
Now, it is common ground that parties on both sides labored under the burden of traditional histories or evidence in trying to establish their respective claim of ownership to the land in dispute. Be that as it may the primary burden of proof laid on the respondent consequent upon which he was not only required to plead but also to prove by evidence the following:
1. Who founded the land in dispute;
2. How he founded it; and
3. The particulars of the intervening owners through whom he claimed.
The respondent pleaded particularly at paragraph 10 of his amended statement of claim that the land in dispute forming a portion of a vast parcel of land was acquired by his Sadibo family in the year 1783 A.D. through a Royal grant by Olowo Elewuokun and that the land spreads from St Louis Hospital Junction, Owo to Janjanran Stream joining Agunka Stream at old Owo-Akure, Road, Owo.
By his evidence contained at pages 39-40 of the records, the respondent in proof of the grant testified inter alia:
“My family got the land through a grant by Olowo Elewokun about 230 years ago (1783 A.D.). My ancestors the 1st Sadibo Arokunmola was a great warrior and a hunter from Idoani…. When he was coming to Owo he came with his two brothers they are, Oshorun who later became Chief Oshorun and Usokuntaye who later became Chief Usokuntaye of Owo.”
As is decipherable from a community reading of their amended statement of defence, the appellants are claiming their title through the Elerewe Chieftaincy family as being the owner under native law and custom from time immemorial. (See particularly paragraph 6 of the amended statement of defence).
To prove their claim, the appellants through the DW1 led the following evidence:
“The Elerewe family owns the land in dispute…….. The Olowo Otutubiosun created Elerewe chieftaincy title in 1690 AD granted the land in dispute to Elerewe Akenti. The land now in dispute is part of the land granted to Elerewe Akenti by Olowo Otutubiosun in 1690….. When Elerewe Akenti was given the land, he did not meet anybody there. It was a virgin land. Since then four Elerewe’s have reigned and used the land. They are (1) Akinti (2) Adesunloye (3) Olubobare (a) Alekanye (5) Olakunori (5) Abraham Ojo-Olakunri II and (7) myself as Olakunori III.” See pages 91-92 of the records.
With the foregoing conflicting traditional histories as led by both sides it became pertinent for the trial court to resort to the principle enunciated by Lord Denning in the Privy Council case of KOJO II vs. BONSIE & ORS. (supra) where the law is stated thus:
“Where there is a conflict of traditional histories, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and seeing which of the two competing histories is more probable.”
See also Ogba vs. Onwuzo (2000) FWLR (pt. 17) 176 at 181; and Fasanya vs. Adekoye (2001) FWLR (pt. 34) 516 at 536-537.
It was after a review of the traditional evidence of the parties that the learned trial court came to the conclusion thus:
“After a thorough review of the evidence of the plaintiff and his witnesses along with his pleadings and that of the defendants along with their pleadings and in the light of Exhibit “B” which has in a way lighten (sic) the burden of the plaintiff, I believe the traditional history of ownership of the disputed land as presented by the plaintiff and his witnesses in their evidence before this court.” [Emphasis supplied].
It is trite that in evaluation of evidence of parties, the trial court is enjoined to consider the totality the evidence led by each party. It then places it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. This evaluation of evidence entails the assessment of same so as to give value or quality to it, rather than swallow the story of one party hook, line and sinker. Such evaluation of evidence should necessarily involve a reasoned preference of one version to the other. See LAGGA vs. SARHUNA (2008) NWLR (pt. 1114) 427 at 460, paras. E-H.
In the light of the foregoing, the question that begs for an answer is whether the trial Judge adhered to the principles as stated above in the evaluation of the evidence of the parties particularly as it relates to the conflicting traditional histories of the land in dispute.
Beginning with the issue of grant of land to Elerewe chieftaincy, the evidence of DW1 runs thus:
“Elerewe Akenti was the first Elerewe and Olowo Otutubiosun was his sibling born of the same mother. The Olowo Otutubiosun created Elerewe chieftaincy title in 1690 AD granted the land in dispute to Elerewe Akenti…
It was the practice then that when Olowo creates a chieftaincy title parcel of lands would be given to the title holder. Elerewe was given large parcel of land in this instance because he was born of the same mother by (sic) the then Olowo. When Elerewe Akenti was given the land, he did not meet anybody there. It was a virgin land. Since then four Elerewe’s (sic) have reigned and used the land.” (See pages 90-91 of the record).
The PW3 under cross-examination stated thus:
“…… I know that when Olowo creates a Chieftaincy a large parcel of land is attached to the Chieftaincy. I don’t know the first Sadibo…. I confirm that the land in dispute belongs to Sadibo. (The plaintiff).” (page 69 of the record).
As rightly pointed out by the learned counsel for the respondent, the PW3 from his foregoing evidence or even in any of his other pieces of evidence, did not tie the grant of the land in dispute to the Elerewe chieftaincy as submitted in paragraph 4.7 of the appellants, brief of argument. Instead, he merely confirmed the practice of attaching a large parcel of land to a newly created chieftaincy title.
It was after considering the totality of the evidence adduced by the parties that the learned trial Judge reached the following conclusion:
“Besides, the claim of the 1st defendant that Elerewe Akenti was the first Elerewe and born of the same mother as the Olowo Otutu who created the title and gave him the land in dispute was certainly disputed by the evidence of the plaintiff that the land was given to them by Olowo Elewuokun 93 years after the defendant claimed the land had been granted to their ancestor. The evidence of the DW3 stated the custom of Owo with regards to the status of chiefs and allocation of land may be true but how relevant is that piece of evidence to the case on hand. The 1st defendant said that when a title is established, Olowo attaches land. He said Elerewe title was established in 1690 and land was allocated to the title at Igboroko but for an inadequacy of land at Igboroko he decided to give additional land to Elerewe at Oke-Ogun as a farmland. The question is which other family at Igboroko enjoyed this privilege of having land grants in two locations. No such evidence was given not only with regards to Igboroko quarter or Elerewe Chieftaincy title but of any other family in the entire Owo except that one Chief Oworo Ijasan also had land at Oke-Ogun without stating whether it was a second grant or the only grant to his family. For a family that enjoys special relationship with the then Olowo having been born of the same mother as claimed, why is it difficult to give him enough land at a location like other title holders who were less related to him.” [See page 232 of the record].
Flowing from the foregoing conclusion is a misconception on the part of the learned trial Judge that the land at Oke-Ogun was a second grant to Elerewe by Olowo. On the contrary the apposite conclusion to be reached thereon is that the grant was made at Oke-Ogun in view of the insufficiency of land at Igboroko. It is therefore my holding that the conclusion of the learned trial Judge in the circumstance was reached out of con.
Regarding the issue of the grant of the land in dispute to Sadibo Arokiola and the origin of Okeogun name of the land, the respondent’s evidence thereon is that his ancestor, the first Sadibo (Arokunmola), a hunter/warrior who migrated from Idoani to Owo in 1783, was invited by the then Olowo (Elewu-Okun) to stay in the Owo’s palace but Sadibo refused. Instead he requested for and was granted the vast portion of land, (which includes the portion now in dispute) behind the town moat at Oke-Ogun. The respondent denied the DW1’s version that the first Sadibo was deliberately positioned behind the moat by the Owo people to ward off invaders/marauders-which implies that the respondent’s land terminates at the moat. However, the respondent stated categorically in his evidence at page 48 of the record, inter alia, as follows:
“My land does not terminate at the moat. It is not a natural boundary as my family has settled in Okeogun before that moat was done.”
Still under cross-examination the respondent went on at page 59 of the record to testify as follows:
“It is not true that the land was not granted to my ancestors by Olowo Elewuokun. It was granted to my ancestors in the year 1783. No war ever came to Owo. No wall were built around Owo to ward off invaders. Owo was never invaded. It is not true that the land in dispute was one of the battle grounds for the invaders. I confirm that Arokunmola, my ancestor who first migrated from Idoani was a warrior. He was settled behind the moat including the land in dispute. The place was not OKE-OGUN battle ground but OK’OGUN – twenty.”
Earlier at page 39 of the record last paragraph thereof, the respondent had testified thus:
“After sometime, Olowo asked for the number of people staying with my father. My father replied that they were just twenty. That was how the name Okeogun came in…..”
Be that as it may, one of the respondent’s witnesses (PW6) in a seeming contradiction of the foregoing evidence of the respondent had stated under cross-examination at page 81 of the record thus:
“I know Porogun trees. I know moat known as “Yara”. In Owo Porogun trees and Yara are usually boundary lines at Owo.”
Another of the respondent’s witnesses (PW7) on his own part had stated inter alia under cross-examination that:
“I know Okeogun. It was a battle ground those days. That is why it was name (sic) Okeogun.” [See page 84 of the record].
Then PW8 on his own part at page 88 of the record had this to say:
“Okeogun means where Ogun is worshipped. I am not aware of the place being a battle front. I heard that Owo faced many inter tribal battles in those days….”
According to the learned counsel of the appellants, the above pieces of evidence touching on the moat as a boundary and whether or not Okeogun was a battle ground vis-a-vis the settlement of the 1st Sadibo thereon being an acclaimed warrior should have raised serious doubts in the mind of the trial court as to the respondent’s claim/denial that his land does not terminate at the moat. Undoubtedly, there are discrepancies in the foregoing pieces of evidence of the respondent and his witnesses as it relates to the place/position or significance of “Okeogun” in Owo. Nevertheless, distortion of facts is not alien in traditional oral history as they are passed down the ages given that a lot depends on human memory and mind. For as long as such distortions are not occasioned or reached with ulterior and dishonest motive, they are overlooked. It is against this backdrop that I too, hold the disparity herein to be of no moment. Thus, the learned trial Judge to my mind rightly evaluated the evidence and found as follows:
“The name Oke-Ogun however it came about is not an issue in this matter. To me it does not matter how the place derived its name whether as a result of the number of people that came with the plaintiff’s ancestor which he claimed were twenty – (pronounced as “ogun” in Yoruba language) or where god of iron (pronounced as “Ogun” in Yoruba language) was being worshipped or a battle front (oju-ogun also in Yoruba language) did not change the fact that the two parties are not (sic) disputing the owner of the land. They both claim to have been granted land by the Olowo reigning at the time their family land was granted. Neither of them claimed to have been the original owner or founder of the land but grantees. Besides, they both have portions of undisputed land within the same Okeogun. To this extent, the argument on the origin of the name Okeogun are mere distractions that has no bearings in deciding the true owner of the land in dispute and of no moment, and I so hold.”
I do hold as argued by the learned counsel for the respondent that “Okeogun” (whether as a hill of twenty or as a hill of battle or even as a hill where “ogun” is worshipped), is a location. However, being a location in any sense of it, to my mind does not imply that it is a boundary mark more so as it is common ground that both parties have undisputed portions of land within the same Okeogun. It is my firm view that the evaluation of the pieces of evidence and the conclusions drawn from them by the learned trial Judge are unassailable.
Coming to the particulars of the intervening owners through whom the respondent claims ownership, the appellants’ grouse thereon is that the number of years given by the respondent is mathematically inexact by about 8 (eight) years.
Again, as I have hinted earlier on in this judgment, the fallibility of the human mind can never be over emphasized. The evidence herein is based on oral traditional history and not documentary evidence in which case allowance should be made for some margins of inexactitude. From the narration of the said respondent with regards to the intervening owners of the disputed land before ever it got to him, he testified thus:
“The 1st is Sadibo Arokimola he reigned for 50 years.
The 2nd is Sadibo Arotiba he reigned for 65 years.
The 3rd is Sadibo Olalude he reigned for 52 years.
The 4th is Sadibo Ogungbayila he reigned for 39 years.
The 5th is myself Wilson Babatunde Sadibo. I am on my 24th year. I became the Sadibo on 11th July, 1981.”
The foregoing is in proof of respondents pleading that the 1st Sadibo was granted the land in dispute in the year 1783 AD.
Some years are obviously unaccounted for but this is not unexpected considering the human mind. As enunciated in the rule in KOJO II vs. BONSIE (supra) as in a host of other similar cases:
“…. it must be recognized that in the course of transmission from generation to generation, mistakes may occur without any dishonest motive whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago…”
The discrepancy or distortion as has occurred in the account of the respondent has not been shown by the appellants to be of any dishonest motive whatsoever. Moreover, the appellants never challenged the existence of the said intervening owners. Therefore the discrepancy as it relates to the unaccounted 8 (eight) years out of the over two hundred years of established ownership by the respondent as it were, is hereby held not to be fatal to the respondent’s case.
On the need for the trial court to have resorted to acts within living memory in resolving the conflicting traditional histories of the parties, the appellants at page 24, paragraph 4.26 of their brief of argument had submitted as follows:
“Since the respondent did not adduce evidence of recent acts of ownership within living memory, the court should have believed the acts of ownership adduced in evidence by the appellants and dismiss the respondent’s claim/evidence of tradition on the land in dispute.”
Nothing could be far from the truth than this. This is because the respondent had testified at the trial that he gave portions of the disputed land to various people including Rev. Jide Fagboyegun who has a Certificate of Occupancy on the land, Mr. Akintimehin, Mrs. Obajuluwo, Mr. Idowu Olawolu and Mr. Jimoh amongst others. [See page 40 of the record].
At paragraphs 24 and 26 of the amended statement of claim, the respondent had pleaded as follows:
24. The plaintiff avers in exercising our rights of ownership over the Okeogun land several parcel of the land had been alienated by my family to individual, private organization and institution, such going concern like Jof Ideal Farm and institution like St. Louis Grammar School and St. Louis Hospital as well as individuals like Rev. J. O. Fagboyegun Late, Chief Adekunle Ajasin, Chief J. O. Ogunbodede, Mr. P. O. Adewale and Mr. Ogwaseye, Late Chief D. O. Akerele, Chief P. A. Sanni etc. derive their titles from Sadibo family.
25…
26. The plaintiff states that the other act of ownership exercised by my family over the Okeogun land also involved written objection to the state land department against issuing of Certificate of Occupancies to trespassers who claimed the land through the 1st and 2nd defendants such was the case with one Mr. Benson Adeyanju Olateru-Olagbegi which objection was upheld.
In his evidence as contained on page 40 of the record, the respondent testified that since after surveying the land he had alienated part of it to various people including Rev. Jide Fagboyegun, who has a Certificate of Occupancy for the portion allotted to him, Mr. Akintimehin, Mrs. Obajuluwa, Mr. Idowu Olawolu, Mr. Jimoh amongst others.
Respondent also pleaded at paragraph 43 of his amended statement of claim that:
The plaintiff avers that the 1st and 2nd defendants have prepared a layout on the land in their names though unapproved and (sic) act my family protested against through letters to the Ministry of Lands challenging their false claims.
In his evidence and in line with the foregoing pleading the respondent tendered the document admitted as Exhibit C being the protest letter to the Ministry of Lands and Housing, Owo, dated 2nd August, 1999 consequent upon which the Town Planning Authority stopped approving plans on the land. The appellants never challenged the respondent on the exercise of their right of ownership over the land in dispute. Thus, with minimal proof as required in Onwuka vs. Omogu (1992) 3 SCNJ 98 at 127, the respondent was able to establish his exercise of right of ownership.
It is in the light of all that I have said above, that I hold that the trial Court was correct when on reviewing the traditional evidence of the parties, it found as follows:
“After a thorough review of the evidence of the plaintiff and his witnesses along with his pleadings and that of the defendants along with their pleadings and in the light of Exhibit B which has in a way lighten the burden of the plaintiff, I believe the traditional history of ownership of the disputed land as presented by the plaintiff and his witnesses in their evidence before this court.”
Accordingly issue 2 (two) is resolved in favour of the respondent and against the appellants.
ISSUE 3 (THREE)
Whether the evidence of PW2 as to the grant of agricultural land to his father by the respondent’s family goes to no issue and ought to be expunged from the court’s record in the circumstances of this case.
Learned counsel for the appellants refers to paragraph 20 of the respondent’s amended statement of claim and the denial of the averment therein by the appellants as stated in paragraph 17 of their amended statement of defence. Counsel goes on to contend that the respondent in his reply to the statement of defence never controverted the said averment of the appellants as it related to the custom in Owo vis-a-vis the grant of land by a minor chief to a senior chief. Learned counsel argued that in spite of their objection to its admissibility the learned trial court admitted and refused to expunge the evidence of PW2. See pages 61-64 of the record.
Learned counsel for the appellants submitted that in his judgment the learned trial court still justified the admission of the PW2’s pieces of evidence on the ground that same is covered by paragraph 24 of the amended statement of claim. Argues that paragraph 24 of the amended statement of claim talks about land that had allegedly been alienated by the respondent’s family and not the kind of alleged temporary agricultural grant which the PW2 testified about. Counsel referred to the Black’s Law Dictionary, 9th Edition, at page 84 wherein the word “alienate” was defined as “to transfer or convey (property or property right) to another.”
Counsel went further to submit that paragraph 25 of the same amended statement of claim of the respondent shows beyond any doubt that PW2’s evidence was outside the realm and intendment of paragraph 24 thereof.
Also in his contention, the learned counsel for the appellants stated that if the learned trial Judge had carefully considered the respondent’s pleadings in its totality and not in isolation, he would not have misdirected himself and thereby come to a wrong decision that the PW2’s evidence was within the ambit of the said paragraph 24 of the amended statement of claim, more so when the respondent had averred in paragraph 9 thereof, inter alia, that:
9. The plaintiff states that the land in dispute is the undeveloped or yet to be developed portion of the family vast land……
It was at this point that the learned counsel for the appellants urged on us to resolve issue 3 in favour of the appellants.
Learned counsel for the appellants argued in summary that having admitted to have alienated vast portions of the land in dispute to individuals and institutions who had subsequently obtained certificates of occupancies thereof, the respondent was not entitled in law to a declaration of ownership in respect of the whole land or certificate of occupancy thereof since he failed to demarcate in his survey plan/evidence the areas he had so alienated.
Submits that the findings, conclusions and or judgment of the learned trial court was/were perverse, having regard to the totality of the evidence before the court; and that the Court of Appeal has the duty to evaluate the evidence before the trial court and make appropriate findings thereon where the evaluation of same by the trial court was perverse.
Counsel finally urged on us to allow the appeal, reverse the judgment of the trial court entered in favour of the respondent and dismiss the case. On the part of the respondent his take on issue 3 is that the acronym “etc.” in paragraph 24 of the respondent’s amended statement of claim is the short form of the Latin phrase et cetera meaning: “and the rest” “and so on” or something in addition. Counsel referred to the 20th Century Chambers Dictionary at page 432 and the Black’s Law Dictionary, Deluxe 7th Ed. at page 573. Against this backdrop counsel submitted that the phrase et cetera covers PW2 as one of the individuals that the respondent alienated portion of the land in dispute to in paragraph 24 of the statement of claim.
He urged on us to hold that the trial court did not mislead itself or come to a wrong conclusion in holding that the evidence of the PW2 that the respondent’s father gave land to his own father was within the confines of paragraph 24 of the amended statement of claim. He further urged on us to discountenance the authorities of Sunmonu vs. Sapo (2001) 5 NWLR (pt. 705) 59 at 76, paras. D-E; Temile vs. Awani (2001) 12 NWLR (pt. 728) 726 at 752, paras. C-D; and Yusuf vs. Adegoke (2007) 11 NWLR (pt. 1045) 332 at 353. paras. C-D, as inapplicable in the peculiar circumstances of this case.
With regards to the denial or non-denial of the averment in paragraph 17 of the amended statement of defence, learned counsel for the respondent submitted that what is in issue in the pleadings thereof is the supposed Owo custom by which a senior chief could not acquire land from a junior chief. Argued that the existence or non existence of the alleged custom is separate and distinct from the issue of whether the land given to the father of PW2 by the father of the respondent was pleaded or not. Learned counsel on assuming but not conceding that paragraph 17 of the amended statement of defence was not controverted, it would still not mean that the evidence of PW2 under reference was not pleaded. He urged on us to so hold and reject the argument of the appellants on this score. Consequently he urged that we resolved issue 3 in the affirmative.
He urged on the whole that we uphold the judgment of the trial court and dismiss this appeal.
RESOLUTION OF ISSUE 3 (THREE)
It is trite indeed that evidence on facts not pleaded is inadmissible as it goes to no issue and the court must discountenance same if it had already been inadvertently admitted. See Sumonu vs. Sapo (supra), Temile vs. Awani (supra); Trade Bank Plc. vs. Yisi (Nig.) Ltd. (2006) 1 NWLR (pt. 960) 101 at 140; and Ali vs. Hussaini (2003) FWLR (pt. 138) 1398 at 1409.
Respondent at paragraph 20 of his amended statement of claim pleaded thus:
“20. The plaintiff states that Elerewe late Chief Olakunori the farmer (sic) 1st and 2nd defendant (sic) begged my father (Sadibo Olalude) for a piece of land for farming purpose and was granted being the son of the daughter of Chief Oshokunkaye the younger brother to Chief Sadibo Arokimola.”
In the amended statement of defence of the 1st to 8th defendants, the appellants pleaded thus at paragraph 17 thereof:
“17. The defendants deny paragraphs 19, 20, 21, and 22 of the Statement of Claim and aver that it is not the custom at Owo for a High Traditional Chieftaincy to ask for land from a minor Chieftaincy like the Sadibo chieftaincy, a non-Omolowo Chieftaincy and a non-Olowo Kingmaker Chief as alleged by the plaintiff.”
Obviously the respondent in his reply to the statement of defence did not controvert the above statement of the appellants as it relates to the custom in Owo vis-a-vis the grant of land by a minor chief to a major chief.
In spite of the implied admission of that fact, the respondent’s PW2 testified follows:
“The plaintiff’s father was my father’s friend. My father’s name is Ajana Adegbeha. He asked the plaintiff’s father for land. He was given land where he farmed for about twenty years before he died. The land I am referring to is at Okeogun. My title is Ajana of Isaipen quarter, Owo. I became the Ajana on October, 18 1943. The plaintiff is from Okeogun Street. Okeogun is part of Isaipen.
The plaintiff is in the 4th position to me in Isaipen ……” (See page 61 of the records).
Still Under evidence-in-chief, the PW2 testified inter alia:
“… I also farmed on the land for fifteen years, nobody challenged me too.” (page 63 of the records].
Then at page 64 of the records, the PW2 continued under cross-examination by saying inter alia:
“… I confirm that it is true that my father begged the Sadibo to give him land despite the fact that he has four camps of his own because he wanted an Oko-eti-ile. I stopped farming on the disputed land long ago. I stopped farming there over twenty years ago……”
In his judgment, the learned trial Judge rightly justified the admission of the above pieces of evidence of the PW2 on the ground that same is covered by paragraph 24 of the respondent’s amended statement of claim earlier reproduced in this judgment. The said paragraph 24 no doubt talks about lands alienated by the respondent and his family. With the presence of the acronym “etc.” in the paragraph which on its own means “and the rest” or “and so on” or “additionally” it then follows in my view, that the alienation of the respondent’s lands includes those given out whether temporarily or permanently as the case may be for farming purposes and as was given out to the PW2’s father. To my mind the overriding purport of the alienation of the respondent’s land is the fact that he was at all material times exercising acts of ownership over the land in dispute.
In paragraph 25 of the amended statement of claim, the respondent went on to plead as follows:
“25. The plaintiff avers further to paragraph 24 above that all the individuals and institutions aforementioned had applied and obtained certificate of occupancies over their properties from the Ministry of Lands Akure without any objection from any claimant.”
Contrary to the submission of the learned counsel for the appellants, the learned trial Judge after a careful consideration of the evidence as led came to the right conclusion that the PW2’s evidence was within the ambit and intendment of the respondent’s paragraph 24 supra. I am not at all at pains in holding and I so hold that the evidence of the PW2 as to the grant of agricultural land to his father by the father of the respondent goes to every issue and was rightly retained in the court’s record in the circumstances of this case. It is in this light that I resolve issue 3 (three) in favour of the respondent and against the appellants.
I am satisfied that all the individuals and or institutions who benefitted from the grant had applied for and gotten their respective certificates of occupancies. This does not remove from the fact that the respondent has established his claim of ownership over the land in dispute. It may appear that the appellants are suggesting that the respondent should not be seen to be eating his cake and having it at the same time. Whatever is the case the respondent has asked for a declaration of his entitlement to the certificate of occupancy in respect of the land in dispute and having satisfied the claim by credible and cogent evidence, he is entitled to his claim. It is not for the court to make a case for those individuals and or institutions who are in no way party or parties herein. The court is not known to be a Father Christmas.
The result of all that I have said above is that this appeal lacks merit and is accordingly dismissed. I hereby affirm the judgment of the High Court of Ondo State, sitting at the Owo Judicial Division and delivered by Hon. Justice Olasehinde Kumuyi on 25th March, 2010 in suit No: HOW/24/2002.
SOTONYE DENTON WEST, J.C.A.: I read in advance the lead judgment delivered by my learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA, who has exhaustively considered and meticulously resolved the issues in controversy in this appeal. I agree with the reasoning and conclusion ably advanced therein.
I agree with my learned brother that in seeking a declaration of title to land, the plaintiff has a primary duty to prove clearly and unequivocally the precise area to which the claim relates. This burden however only arises where the identity of the land in dispute is an issue. More so it is expected that the issue is raised in the statement of defence and supported by evidence.
Whilst the respondents pleaded paragraphs 4, 5, 6, 7, 8 and 9 of his amended statement of claim in support of identification of the land, the appellants on the other hand, sought to contradict the identity of the said land by placing reliance solely on the evidence of DW5 who gave the size of the land vide Exhibit R as 38,974 hectares. However, the said Exhibit R could not constitute credible evidence of the land without having been pleaded by the appellants, more so when the lower court found that the boundary neighbours are the same but are called by different names.
For these and the more detailed reasons well set out in the lead judgment, I also find this appeal totally lacking in merit. I accordingly dismiss it. Also, the judgment of the High Court of Ondo State, sitting at Owo Judicial Division and delivered by Hon. Justice Olasehinde Kumuyi on 25/3/2010 in Suit No. HOW/24/2002 is hereby upheld and affirmed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the Judgment delivered by my learned brother C. Ifeoma Jombo-Ofo, JCA. I agree with the conclusion and I also abide with the consequential order(s).
Appearances
J. O. Ajewole Esq.For Appellant
AND
Hussein Afolabi Esq.For Respondent
