SEWANU DANSU & ORS v. CHIEF OLOWO IGE LABALU & ANOR (2014)

SEWANU DANSU & ORS v. CHIEF OLOWO IGE LABALU & ANOR

(2014)LCN/7681(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of March, 2014

CA/I/102/2009

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL

It is the law that issues for determination must arise from the grounds of appeal. I think that the best way of showing that this requirement has been satisfied, is to identify the grounds of appeal to which each formulated issue relates. This is good practice.
A situation where the issues do not disclose the grounds of appeal to which they relate places an additional burden on the court in its quest to do substantial justice, by having to undertake the task of unveiling the grounds by itself. I think this is an unnecessary burden. As stated by the Supreme court in the case of Dada v. Dosunmu (2000) 18 NWLR (Pt. 1010) p.134 at p.156.
“…….. it is very necessary and desirable for the learned counsel for the Appellant to always relate or tie the issues for determination in the Appellants’ brief to the grounds of appeal from which the said issues are distilled. Failure to do so may not necessarily result in the issues being struck out for being incompetent particularly where in the opinion of the court the issues can validly be distilled from the grounds of appeal and in such a situation the court can on its own take a close look at the grounds of appeal and the issues as formulated in order to do substantial justice”. per. OBIETONBARA DANIEL-KALIO, J.C.A.

CASE LAW: THE RULE IN KOJO II V. BONSIE; IN WHAT CASE WILL THE RULE IN KOJO II V. BONSIE APPLY

It is clear that the Appellants here hinged issue 2 on the rule in Kojo II v. Bonsie (1957) 1 WLR 1223. Lord Denning in that case said at page 1226 thus:-
“Where there is a conflict of traditional history… the best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable”.
See Chikere v. Okegbe (2000) 7 KLR (Pt. 108) p.2597 at 2668. Elucidating the rule further, the Supreme Court per Uwaifo, JSC stated in Eze v. Atasie (2000) 10 NWLR (Pt. 676) p.470 at 482 thus:
“It is now clearly established that for that rule to apply, there must exist side by side, two stories of tradition, one by each party, which are themselves credible or plausible but are in conflict, one with the other such that the court is unable to realistically and justifiably prefer one to the other. In that case, either of the two stories may rightly be regarded as likely to be true, or that they are probable”.
It is clear therefore that the rule in Kojo II v. Bonsie (supra) will only apply where in the race to impress the court about which traditional history is more probable, there is a photo-finish. Once that is not the case and the historical evidence presented by one of the parties is clearly ahead or more probable, the rule does not apply. In this case the trial customary court was evidently impressed with the historical evidence of the Respondents. The court expressed its view with regard to that in its judgment at page 21 of the Record thus:-

“We believe the traditional evidence of the plaintiffs to be more plausible and overwhelming”.

Besides the traditional evidence, the trial customary court was satisfied as established, another way of establishing title as stated in the case of Idundun v. Okumagba (supra), namely acts of ownership and possession as evidenced by sale of adjacent land. In view of that also, the lower court had no difficulty in coming to the following conclusion at page 71 of the Record:

“Going both by the evidence of traditional history adduced and the recent acts of possession and ownership, the findings and conclusions of the lower court cannot be faulted”. per. OBIETONBARA DANIEL-KALIO, J.C.A.

LAND LAW: CUSTOMARY LAND LAW; WHETHER FORFEITURE BECOME AUTOMATIC WHERE TITLE IS DENIED

It seems to be settled law that forfeiture is not an automatic remedy.
See Esi vs. Warri Divisional Planning Authority (1973) 11 SC 235 referred to in principles of Nigerian Customary Land Law by J. Fekumo at page 312. It would seem however that where the Respondents’ title is denied, forfeiture becomes automatic. See Onoitare v. Onopasa (1984) 12 SC p.19 at p.50. in the case of Oniah v. Onyia (1989) 1 NWLR (Pt. 99) p.514 at p.532, the Supreme Court stated the position of the law this way:
“It is well settled that forfeiture is the usual mode to determining a customary tenancy. The real basis of the misconduct or misbehavior which renders the tenancy liable to forfeiture is the challenge to the title of the overlord. This may be by alienation of part of the land under claim of ownership, refusal to pay the tribute due or indeed, direct denial of overlords’ title by setting up a rival title in the customary tenant himself”. per. OBIETONBARA DANIEL-KALIO, J.C.A.

Before Their Lordships

CHIDI NWAOMA UWAJustice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIOJustice of The Court of Appeal of Nigeria

Between

SEWANU DANSU & ORSAppellant(s)

AND

CHIEF OLOWO IGE LABALU & ANORRespondent(s)

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This is a land matter. The land dispute between the parties was first heard at the Ado-Odo Grade II Customary Court in Ogun State. The Appellants lost there. They headed by way of an appeal against the judgment of the said Customary Court, to the High Court of Ogun State. Again, the Appellants lost there. They have further appealed to this court. The land, subject of the dispute between the parties is a vast piece of land at Meika Idonume near Agboku Village in Oke-Padre Area, near Ado-Odo in the Ado-Odo/Ota Local Government Area of Ogun State.

After hearing the Appellants appeal from the Grade II Customary Court, the lower court came to the following conclusion.
“Having found largely in favour of the Respondents and finding nothing perverse in the findings, evaluations and conclusions of the lower court, I see no justifiable reason to disturb that judgment except for the award of damages for trespass which is hereby set aside”.

Aggrieved by the judgment of the lower court delivered on 16/6/2008. The Appellants filed a Notice of Appeal on 5/9/2008 faulting the judgment on 7 grounds. Each ground was accompanied by particulars but I consider it necessary to reproduce only the grounds here. They read as follows:-

1. The learned judge erred in law when he affirmed the judgment of the Ado-Odo Grade II Customary Court and held that he had carefully looked at their findings and saw nothing perverse as they were substantially in conformity with the evidence adduced in the court and saw no reason to disturb them.

2. The learned judge erred in law when he held that while it is true that from the record the witnesses did not specifically mention 250 years and 2nd and 3rd, 5th and 6th generations and that the witnesses especially the 7 parties gave evidence of their ancestors and how they have been on the land for a long time but that the lower court merely drew inference from evidence of long ancestry given by the parties which even if it was wrong was not sufficient to disturb overall findings and conclusions substantially in alignment with the body of evidence.

3. The Learned High Court Judge erred in law when he held that the lower court was right in its findings and conclusions that the Respondents were the owners of the land in dispute based on the evidence before it.

4. The learned judge erred in law when he held that clearly there was evidence to support the finding of the lower court that the Appellants were customary tenants of the Respondents on the subject land.

5. The learned judge erred in law when he held that the evidence before the lower court clearly showed that the Appellants blatantly denied the title of the Respondents to the land in dispute claiming that the Respondents were never their overlords and denied ever paying tributes to them and therefore upheld the findings of the Customary Court that the Appellants were liable to forfeiture especially when the Appellants have not sought any relief against forfeiture.

6. The learned judge erred in law when he held that the lower correct (sic) in its findin (sic) and conclusion that the Appellants are the Customary tenants of the Respondents as they were put on the land by the Respondents family.

7. The learned judge erred in law in affirming the admissibility of Exhibits A and B and believed that these documents are not only relevant but quite germans (sic) to the matter before the court.

Let me pause here to say this:

Counsel should be mindful of words, spellings, syntax and grammatical rules in the documents they prepare for use in and out of court, particularly those for use in courts. The meaning of a sentence can be drastically altered on account of the omission or inclusion of a simple word such as ‘not’ for example. It is clear that the Appellants Counsel was rather careless in composing or drafting the grounds of appeal. In order to make sense out of most of the grounds, I took the trouble of doing a yeoman’s job of effecting some minor editing in some of the grounds. However I left grounds 6 and 7 warts-and-all, to illustrate the point I am making here. Using the word “correct” instead of “court” and “germans” instead of “germane” in those grounds is egregious. Passing the buck to the Secretary in the office or chambers is not good enough. As the saying goes, the buck must stop somewhere. In this case the buck stops at the desk of learned counsel whose signature in the process confirms that he is the author.

The Appellants Brief was dated 10/6/2009, filed on 15/6/2009 and deemed as properly filed and served on 6/10/2009. The Respondents Brief was filed on 26/10/2009.

The Appellants Brief was argued in court on 20/2/2014 by Learned Counsel of the Appellant Chief L. O. Ogunleye.
The Respondents Brief was argued the same day by Respondents Counsel R. A. Dagbo.

In the Appellants Brief, five issues were formulated for determination in this appeal. They are –
1. Whether the findings of the trial court as affirmed by the learned honourable justice of the High Court to the effect that Plaintiffs (now Respondents) ancestors had been on the land for over 250 years or being the 5th and 6th generations thereon are borne out of evidence and therefore not perverse.

2. Whether on the totality of the evidence advanced before the trial court as affirmed by the honourable justice of the High Court the Plaintiffs (now Respondents) have proved title to the land in dispute.

3. Whether on the evidence adduced before the trial court as affirmed by the learned honourable justice of the High Court the Respondents have established that the Appellants are customary tenants.

4. Whether in the circumstances of this case the learned judge was right to affirm the order of forfeiture made against the Appellants.

5. Whether Exhibits A and B are relevant as affirmed by the learned judge.

The Respondents on their part formulated four issues for determination. They are –

1. Whether the court below was right to have upheld the finding of the customary court that the Respondents having proved their title were the owners of the land.

2. Whether the court was right in upholding the finding of the Customary Court that the Appellants are the Respondents Customary tenants and that they have misconducted themselves in such a way as to warrant the order of forfeiture of their customary tenancy on the land in dispute.

3. Whether the judgment of the Customary court as upheld by the court below was properly evaluated and supported by evidence therefore neither perverse nor against the weight of evidence.

4. Whether the court below was right in affirming that Exhibits A and B were relevant and thus properly admitted by the Customary Court.

I will consider this appeal based on the issues for determination as formulated by the Appellant’s Counsel.

Issue 1 as will be recalled, is whether the finding of the trial court as affirmed by the High Court to the effect that the Respondents ancestors had been on the land for over 250 years or were on the land for 5 and 6 generations, was borne out of evidence and therefore not perverse. This issue is tied to grounds 1 and 2 of the grounds of appeal.

In arguing this issue, Appellants Counsel referred to page 23 of the Record of Appeal, where according to counsel, the trial Customary Court held that the Respondents’ ancestor settled on the land over 250 years ago and that the Respondents are the 5th and 6th generation to be on the land. He contended that the finding of the trial Customary Court is not supported by evidence on record. Rather than setting aside that finding, learned counsel argued, the lower court saw nothing perverse in it and stated that it saw no reason to disturb the finding. It was contended that the lower court was wrong not to have held that the finding of the trial customary court under attack, was perverse. Learned Counsel referred to Black’s Law Dictionary 8th Edition on the meaning of “perverse verdict”. He urged us to hold that the lower court was wrong in not having held that the finding of the trial customary court was perverse.

The response of the Respondents to issue 1 of the Appellants is to be found in the argument of the Respondents under the Respondents Issue 3.

Respondents Counsel submitted that the findings of the Customary Court complained about were based on the evidence presented before that court. We were referred to page 7 and 8 of the Record of Appeal and in particular to the evidence of the 85 year old witness, Chief Oluwo Ige Labalu. It was contended that the findings of the lower court were not perverse as same were supported by evidence and did not occasion any miscarriage of justice. Learned Counsel referred us to the judgment of the lower court, particularly at page 71 of the Record of Appeal and also to the case of Atayi Farms Ltd v. NACB Ltd (2003) FWLR part 172 p. 1864 at p. 1887-1888. We were urged to disregard the submission of the Appellants Counsel and uphold the findings of the customary court as affirmed by the court below.

That part of the judgment of the lower court that the Appellants Counsel wants us to upset by reason of his submissions under issue 1 is contained at page 77 of the Record of Appeal and reads:

“While it is true that from the record the witnesses did not specifically mention “250 years” or 2nd and 3rd, 5th and 6th generations, the witnesses, especially the parties gave evidence of their ancestors and how they have been on the land for a long time. The lower court merely drew inference from evidence of long ancestry given by the parties. In any case, even if this was wrong to do by the lower court, it is not, in my view, sufficient to disturb their overall findings and conclusions which were substantially in alignment with the body of evidence”.

There is nothing askew about the above stated view of the lower court. Admitted that no mention was made before the trial customary court about “250 years” or “5th and 5th generations”, how did that cause a miscarriage of justice? That is the question that the Appellants should give an answer to. It is not enough to say that the court made an error in that regard. It is well settled law that it is not every error or mistake in a judgment that will lead to a judgment being reversed or set aside. An Appellate Court will do so only where the error or mistake has led to a miscarriage of justice and where without the error, a different decision would have been arrived at by the trial court. See Amayo v. Erinmwingbovo (2006) 11 NWLR (Pt. 992) p.669 at 689. I cannot fault the position of the lower court reproduced above. Issue 1 cannot ail through.

I turn to issue 2. It is as will be recalled, whether on the totality of the evidence advanced before the trial court as affirmed by the lower court the Respondents proved title to the land in dispute. This issue relates to ground 3 of the grounds of appeal.

Appellants Counsel referred us to the five ways of establishing ownership of land as stated in Idundun v. Okumagba (1976) 9 & 10 SC 227 at 248 and other cases. He submitted that since both parties relied on traditional evidence and since the evidence adduced by both parties were in conflict and divergent, it was incumbent on the court to resort to acts in recent years to determine the more probable history. Rather than do that, the lower court it was submitted, merely drew an inference from evidence of long ancestry given by the parties. Learned Counsel submitted that it was for the Respondents who were the Plaintiffs to prove their title to the land and in doing so they were required to rely on the strength of their own case and not on the weakness of the case of the Appellants who were the defendants. He urged that the Respondents did not discharge the onus of proof placed on them.

The Respondents’ argument in response to this issue is as contained under issue 1 identified by them. Learned Counsel to the Respondents began by also referring us to the case of Idundun v. Okumagba (supra) on the five ways of establishing title to land. It was submitted that apart from reliance on traditional history to prove their title to the land, the Respondents led evidence to show that they had been in possession of the land since their ancestor Oninume settled on the land and further relied on various acts of ownership including sale of land adjacent to the land in dispute and granting of customary tenancy to people who regularly paid tribute. We were referred to page 7 to 10 of the Record of Appeal. Learned Counsel referred to the evidence of Respondents 2nd and 3rd witnesses who gave evidence that they bought portions of land adjacent to the land in dispute. It was urged on us that the evidence of the said witnesses were not shaken under cross-examination.

Learned Counsel argued that conflict of traditional evidence will only be resolved by acts in recent years where the rival traditional histories are plausible. He contended that that is not the case here as both the trial customary court and the court below came to the conclusion that the evidence of the Respondents is more plausible.

“We believe the traditional evidence of the plaintiffs to be more plausible and overwhelming”.

“Going both by the evidence of traditional history adduced and the recent acts of possession and ownership, the findings and conclusions of the lower court cannot be faulted”.

I cannot fault that opinion.

I now turn to issue 3. That issue is whether on the evidence adduced before the trial court as affirmed by the lower court the Respondents have established that the Appellants are customary tenants. The issue relates to ground 4 of the grounds of appeal.

Appellants’ Counsel submitted under this issue that there is no evidence before the court that the Appellants are the customary tenants of the Respondents. It was argued that there is no evidence that it was the Respondents who put the Appellants on the land.

In his submission in response to be found in the arguments under Respondents issue 2, Respondents Counsel argued that the Respondents proved that the Appellants are their customary tenants. We were referred to pages 5 to 11 of the Record of Appeal. We were referred in particular to the evidence of the 1st Respondent at page 8 of the Record as well as the evidence of other witnesses of the Respondents at pages 9 – 11 of the Record.

I have gone through the evidence before the trial customary court and I am unable to agree with the submission of the Appellants’ Counsel that there is no evidence before that court that the Appellants are the customary tenants of the Respondents. At page 8 of the Record of Appeal the 1st witness of the plaintiffs (the Respondent here) testified thus:
“I know the defendants as the descendants of Dansu, Patifo, Pogbe the child of Vena. They were the children of our father’s customary tenants”.

Under cross-examination, he testified thus at page 9:
“Wesufor who brought Metena (Ogbaraojo) was my great grandfather’s 1st tenant, Matena was a labourer to Adokun, he was granted a portion for subsistence and shelter on our land. They paid their customary dues with their farm products yearly and bottles of wine. Metena begat Humenu who had no issue. Humenu brought Dansu from Kopo’s house in Ere. Both Sewanu and Jimoh are descendants of Dansu. They paid their dues regularly then”.

A learned author J. Finine Fekumo in his book Principles of Nigerian Customary Land Law stated at page 283 of the book that the main incident of a customary tenancy is the payment of tribute. In the case of Ejeanalonye & Ors vs. Omabuike & Ors (1974) ALL NLR 269, Elias CJN stated that “the customary tenant pays tribute and enjoys perpetuity of tenure, subject to good behavior”.

Considering the evidence and the law, I cannot fault the conclusion of the lower court where it held at page 72 of the Record thus:

“Clearly there was evidence to support the finding of the lower court that the Appellants were customary tenants of the Respondents”.

I now turn to issue 4. Issue 4 as will be recalled is whether in the circumstances of this case the learned judge was right to affirm the order of forfeiture made against the Appellants. This issue relates to ground 5 of the grounds of appeal.

Appellants’ Counsel contended that the lower court without any justification confirmed the order of forfeiture made by the trial customary court. He contended that there is no evidence in support of the order of forfeiture made by the trial customary court and that no misconduct was established against the Respondents.

In his submission in response tricked under issue 2 formulated by the Respondents, Respondents’ Counsel submitted that the Respondents are entitled to the order of forfeiture granted by the customary court and affirmed by the court below since, according to learned counsel, the Appellants conducted themselves in a manner that warranted the order. He referred to pages 7 to 11 of the Record.

It is clear that the Appellants in this case set up a rival title. That is why the Respondents claims were contested. The order of forfeiture made by the trial customary court and affirmed by the lower court cannot be faulted.

Issue 5 is whether Exhibits A and B are relevant as affirmed by the lower court. This issue is tied to ground 7 of the grounds of appeal. On this issue, learned counsel submitted that Exhibits A and B were admitted by the trial customary court without stating their relevance or relationship to the land in dispute and wondered why the lower court affirmed that the Exhibits were relevant and reliable.

In his argument in response made under his issue 4, Respondents Counsel submitted that Exhibit A which is the purchase agreement between the 1st Appellant and one of the witnesses of the Respondents and Exhibit B which is the receipt of Land Registration done by the 1st Respondent were both relevant to the determination of the case. I cannot agree more. The cardinal consideration in the admissibility of a document is relevance. See Okoye v. Obiaso (2010) 8 NWLR (Pt. 1195) p.145. It will be tantamount to denying the obvious going by the nexus of the Exhibits to the Respondents case, to say that Exhibits A and B were not relevant in the case between the parties.

My conclusion from all of the foregoing is that the appeal is completely lacking in merit. It is dismissed. Costs of N30,000 is awarded to the Respondents.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the judgment of my learned brother Obietonbara Daniel-Kalio, J.C.A. His Lordship has exhaustively dealt with the issues that have arisen in this appeal; I adopt same as mine in holding that the appeal is lacking in merit. I abide by the order made as to costs in the leading judgment.

HARUNA SIMON TSAMMANI, J.C.A.: Before today, my learned brother O. Daniel-Kalio, JCA gave me a draft of the judgment just delivered.

My learned brother has precisely considered and resolved the issues that cropped up in this appeal. I only wish to add that, it has since been settled by a long line of decided cases that, appellate courts are constantly loathe to disturb findings of lower courts, save where such findings are found to be perverse, or save miscarriage of justice or some violations of some important principle of law or procedure has occurred. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) p.718 and Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) p. 296. Consequently, where there are concurrent findings of fact of two lower courts, an appellate court will not interfere unless there are compelling reasons shown therein to justify an interference. In other words, where there are concurrent findings of fact by two lower courts, this court will not readily interfere or disturb the findings of those courts, unless it is shown that some miscarriage of justice or breach of some principle(s) of law or procedure has been occasioned. See Shekse v. Plankshak (2008) 15 NWLR (Pt. 1109) p.105; Maiyaki v. State (2008) 15 NWLR (Pt. 1109) p.173; Nwankwo v. E.D.C.S.U.A. (2007) 5 NWLR (Pt. 1027) p.377 and Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) p.365.

In the instant case, both the customary court and the High court made concurrent findings of fact to the effect that traditional evidence of the Plaintiffs is more plausible and overwhelming. There was also concurrent findings on acts of possession and ownership on the land exercised by the Respondents’, which then strengthened the Respondents’ case. The Appellants did not dislodge that concurrent finding, and we have not seen anything from the evidence on record to decide otherwise or interfere with the findings of the two courts below.
It is for this reason and the fuller reasons stated by my learned brother in the lead judgment that I agreed that this appeal is lacking in merit. It is hereby dismissed.

Appearances

L. O. OgunleyeFor Appellant

AND

R. A. Dagbo (Mrs.)For Respondent