CHIEF SAMUEL KASALI ARIBISALA v. MR. AMINU BELLO
(2016)LCN/8195(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of February, 2016
CA/AK/103/2013
RATIO
LAND LAW: TITLE TO LAND: WHEN DOES A PARTY NEED TO TRACE TRADITIONAL HISTORY IN LAND MATTERS
Indeed, where in a land matter as in the instant case, the dispute between the parties is as to what features marks the boundary between them, there is no reason for tracing traditional histories. A party needs to trace such history only where his link to the disputed land is in contest or where he has to prove his root of title. See Prince Will V. Amachree (2005) 3 NWLR (Pt. 912) 358. per. MOJEED ADEKUNLE OWOADE, J.C.A
COURT: WHETHER THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial Court which saw, heard and duly assessed the witnesses. Where a Court of trial as in the instant case, unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on Record on which the trial Court have acted. Once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, the Appellate Court cannot interfere.
See: Chief J. Okeowo V. Attorney General of Ogun State (2010) 5 – 7 SC (Pt. 11) 129; Military Governor of Lagos State & 4 ors V. Adebayo Adeyiga & 6 ors (2012) 2 SC (Pt. 1) 68; Osuji V. Ekeocha (2009) 6 – 7 SC (Pt. 11) 91; Cyriacus Nnadosie & 3 ors V. Nze Ogbunelu Umagwu (2008) 1 SCNL 219; Oyibo Iriri & Others V. Eseroraye Erurhodare & Anor (1991) 3 SCNJ 1. per. MOJEED ADEKUNLE OWOADE, J.C.A
PRACTICE AND PROCEDURE: WHETHER A PERSON CAN BE ADVERSELY AFFECTED BY A JUDGEMENT IN AN ACTION TO WHICH HE WAS NOT A PARTY
The general rule of law is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him.
See Tunde Osunrinde & 7 Ors V. Mutairu Togun Ajamogun & 5 Ors (1992) SCNJ 79; National Union of Road Transport Workers & Anor V. Road Transport Employers Association of Nigeria and 5 Ors (2012) 1 SC (Pt. 11) 119. per. MOJEED ADEKUNLE OWOADE, J.C.A
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
CHIEF SAMUEL KASALI ARIBISALA
(For Himself and other members of his family of Odo Quarters, Arigidi-Akoko) Appellant(s)
AND
MR. AMINU BELLO
(For Himself and other members of Jagele Family Agbaluku, Arigidi-Akoko) Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Ondo State sitting at Ikare-Akoko delivered by N. S. Adeyanju, J. on 8th day of April, 2013.
The Respondent as Plaintiff in the Court below took out a Writ of Summons against the Appellant as Defendant on 4/2/2009. By paragraph 19 of the Respondent’s statement of claim dated 24/3/2009 and filed on 26/3/2009, the Respondent claimed as follows:
“(1) An order of Court partitioning Odo Farmland, Agbaluku, Arigidi-Akoko, Ondo State of Nigeria into “IPAWO” Farmland and “IKODE” Farmland between the Plaintiff and the defendants respectively.
(2) An order of Court restraining the Defendants from further selling any parts of Odo Farmland without consent or permission of the Plaintiffs.”
The Appellant as Defendant in his statement of defence and counter-claim of 6-6-2009 counter-claimed against the Respondent in paragraph 23 of the statement of Defence thus:
“23 – Wherefore, the counter-claimant counter as follows.
(1) A Declaration that neither the Plaintiff alone nor his Lemamu
Bello branch of Ayijen or Olodo family can deal with the Ayijen family or Olodo familu land or any part therof without the consent and authority of the counter claimant who is the head of the Ayijen or Olodo family. Odo, Agbaluku Quarters, Arigidi-Akoko.
(2) An order of Court declaring as void all the sales or alienation of land by the Plaintiff of the Ayijen family or Olodo family land so far made.
(3) An order of injunction restraining the Plaintiff either by himself or any member of his Lemamu Bello branch of Ayijen family from further sales or alienation of the Ayijen or Olodo family land.
(4) A sum of N3,000,000 (Three Million Naira as General Damage for the illegal alienation or sales of the family land.”
The Respondent filed a Reply to statement of Defence and counter claim dated 17/5/2010 but filed on 10/6/2010.
?
From the pleadings and evidence, the case of the Respondent is that the land in dispute is called Ipawo land. It was owned by the father of the Plaintiff. The land of the Defendant is called Ikode land. The Defendant has no land in Ipawo. Ihawaja land separates Ipawo and Ikode lands. Both parties jointly cultivate
Ihawaja land.
Jagele was Plaintiff’s grandfather who came from Ile-Ife with Aribisala and settled at Ahamo bush (Igbo Ahamo) and they are still at Ahamo till today. Plaintiff’s town is Agbaluku. The Defendants are also at Agbaluku. Jagele, a Muslim who brought Aribisala from Ile-Ife was senior brother of Aribisala and was an Olodo. The Defendant is the present Olodo. Aribisala was Defendant’s grandfather.
Odo family is made up of two units and not thirteen. When money, meat and other items are being shared, they are shared into two parts. Example, was when the king died and another was to be installed, both parties paid N2,500.00 each. The sum of N20,000.00 whish was the allowance of those in charge of farmland was shared between the Plaintiff and Defendant and each paid N10,000.00 one Odudu collected the first money. The Plaintiff is hearing of thirteen families for the first time in Court.
The boundaries of the land in dispute are Baba Obadayi, Oshodi from Ijasa family and Ikode. The Plaintiff sued because the Defendant is selling Ipawo land to persons whose names the Plaintiff cannot remember because they are many.
?
The case of the
Respondent is that the Plaintiff’s father was known as Ibete Bello or Lemamu Bello. Abiki Ijala was the father of Ibete. Jagele who was a warrior brought Aboki Ijala from Iyere to Agbaluku Arigidi and settled him at Ijala family land called Oson Lemamu. Ibete was the person that planted the cherry (Oson) tree on Ijasa land after which the settlement of Aboki Ijala’s descendants was named. Abiki Ijala’s descendants are no longer on Ijasa family land having been ejected by the Ijasa family.
The Defendants are descendants of Jagele. The Plaintiffs are not. The family of the Defendants is known as Ayijen or Odo family and Olodo of Odo is the head of that family. The Defendant is the current Olodo of Odo.
Lemamu (Ibete) Bello was never an Olodo of Odo and has never been head of family.
There are thirteen branches of Ayijen Odo family, they are: Aribisala, Alade, Ayeba, Fatoki, Amuleya, Orowa, Ajulo, Jinadu, Ogunleye, Oyeleye, Oula, Daramola, and Bello. It is not true that there are only two branches.
The boundaries of Ayijen/Odo family land at Agbaluku Arigidi are Ede/Gbadayi family land, Ugbe Community and Ijasa family.
?
To prove his case
and in defence of the counter claim the Respondent (Plaintiff) testified on his own behalf and called three (3) witnesses. In defence and proof of his counter claim, the Appellant (Defendant) also testified on his own behalf and called five (5) witnesses. The judgment of the learned trial judge is contained at pages 101 – 125 of the record of appeal.
The learned trial Judge held inter alia at page 116 of the record that:
“On the balance of probability, I prefer and believe the more probable evidence of the Plaintiff that his grandfather was called Jagele and not Aboki Ijala, that Jagele came from Ile-Ife with Aribisala the grandfather of the Defendant and that they both settled on Odo family land,”
At page 123 of the record, the learned trial judge held that the Plaintiff succeeds in part and ordered (i) that Odo farmland otherwise known as Ayijen family farmland be partitioned into Opawo and Ikode. Ipawo being for the Plaintiff while Ikode is for the Defendant. (ii) the Defendant is restrained from selling any part of Ipawo farmland without the consent or permission of the Plaintiff.
?
Also at pages 124 – 125 of the record, the learned trial
Judge restrained the Plaintiff and his Lemamu Bello branch of Ajiyen/Odo family from any sale of Ikode farmland which is in possession of the Defendant but refused all other prayers in the Defendant’s Appellant’s counter claim.
The Appellant filed a Notice of Appeal into this Court with eight grounds of appeal on 17th June 2013 which was later amended by adding additional two grounds of appeal bringing the grounds of appeal to ten.
The relevant briefs of argument for this appeal are:
(i) Appellant’s brief of argument dated 4/9/2013 and filed on 11/9/2013 but deemed filed on 22/10/2015 – Settled by Mallam Gani Asiru.
(ii) Respondent’s brief of argument dated 13/10/2015 and filed on 14/10/2015 but deemed filed on 22/10/2015 – Settled by D. D. Adejumola, Esq.
(iii) Appellant’s Reply brief dated and filed on 13/1/2016 and deemed filed on 21/1/2016 – Settled by Adonis Oladuro.
Learned Counsel for the Appellant submitted three (3) issues for determination. They are:
(i) Whether the learned trial Judge was right in the light of the pleadings and evidence on records to have partitioned the land into Ipawo and Ikode between the
Respondent and Appellant respectively, Grounds 2, 6, 7, 8, 9 and 10.
(ii) Whether the learned trial Judge was right in holding that there are two and not thirteen branches for Ayijen/Odo family.
(iii) Whether the learned trial Judge was right in dismissing the counter-claim of the Appellant. Grounds 3, 5 and 8
Learned Counsel for the Respondent on the other hand nominated a sole issue for determination, to wit:
“Whether the learned trial Judge is not in every respect correct and right when having evaluated evidence found judgment in favour of the Plaintiff considering the fact(s), nature and circumstance(s) of this case.”
Learned Counsel to the Appellant argued issues 1 and 2 together and submitted that it is settled law that a Plaintiff is to succeed on the strength of his own case and not on the weakness of the defence. He referred to the cases of Ogunnuhu & Ors V. Chigbuka (2013) 3 SCM 145, 146 and Ohakanu V. Ntemagu (2002) 33 WRN 30 at 35.
He submitted that going by the state of pleadings and admissible evidence on records, it is clear that the Respondent has not been able to establish his claim. That the claim put
forward by the Respondent before the trial Court is that of partitioning of the land into two. But that the case he put forward by his pleading is not in accordance with evidence he gave at the trial and also the facts pleaded is not in line with the reliefs sought from the Court. For instance his claim is for the partitioning of the land into two between himself and the Defendant. However, that, the facts he based this on is that of first settlement on the land.
In his statement of claim, he averred that Jagele his ancestor came to settle at Igbo Ahamo and later came to Ipawo when Aribisala the ancestor of the Appellant was already at Ikode.
Counsel submitted that the case the Respondent put forward by his pleading at best is that of declaration of title. That he was averring the issue of first settlement and that right from the beginning the two portions were separately occupied by Jagele and Aribisala respectively.
?
He submitted that there was nowhere in the Respondent’s pleadings and or evidence in which he stated when the two portions of land became one and how both of them became joint family properties. This, according to Counsel is
because in a case of partition, the Claimant has to prove how the land became their family land. The Respondent, said Counsel has to rely on the averments in his pleading and should not make out a different case at the hearing.
He referred to the case of Ajide V. Kelani (1985) 3 NWLR (Pt. 12) 248 at 269 and submitted further that the Plaintiff is bound by the case he put forward. That once an issue is joined between the parties, the Court is bound to adjudicate between the parties on the issues formulated by them.
Appellant’s Counsel referred to numerous case law authorities to emphasize the role of pleadings in civil litigation. They include the cases of Liman V. Muhammed (1999) 9 NWLR (Pt. 617) 116 at 137; Morinatu Oduka and others V. Kasumu and others (1968) NMLR 28, 31; Adesoji-Aderemi V. Johnson Adedire (1966) NMLR 398; Adimora V. Ajolo and others (1988) 8 NWLR 1; Makwe V. Nwuko (2001) 10 SCM 63 at 77; Ogunnuhu & Ors V. Chiegbuka (2013) 3 SCM 146; Olubodun & Ors V. Lawal & Anor. (2008) 10 SCM 175 at 191.
Appellant’s Counsel submitted further that by paragraph 3 of the statement of claim, the Respondent averred that Ihawaja was
cultivated by Jagele and his brother Osere. However, that in his evidence in chief at page 58 of the record, he stated that:
“The land in dispute is called Ipawo. It is the only land. My father owned Ipawo land. The land of the Defendant is called Ikode. He has no land in Ipawo. I sued the Defendant because they entered onto my land. A third piece of land called Ihawaja separates our land and that of the Defendant. Both Plaintiff and Defendant jointly cultivate Ihawaja land.”
Appellant’s Counsel referred to the cases of Olaiya v. Olaiya (2002) 22 WRN 94 and Okhuaroho v. Aigbe (2002) 31 WRN 30 at 34 and submitted that the above piece of evidence is at variance with pleadings and that the point was enough for the Respondent’s case.
?
Appellant’s Counsel faulted the evidence of PW2, Sunday Momodu alias Odudu who testified that he collected moneys separately and by the branches on the occasion of the funeral ceremony of the current king. He argued that PW2 was neither a chief in the community or a secretary/officer in the community. He submitted that DW3 who the learned trial Judge found to be a brother of PW2 from the same Ijasa family was more
credible than PW2.
He urged us to disregard the evidence of PW2 as a reliable one upon which a conclusion can be drawn that the families has two branches.
He submitted further that the learned trial Judge erred in placing reliance on the answer given by the DW2 as to the fact that one Osunla is a stranger within the family as one of the contradictions he claimed in the evidence of the Appellant overlooking the explanation of DW4 at page 81 of the records that there are two Osunlas, one a stranger and that the one who is a stranger had left.
He submitted that the learned trial Judge was in error by describing the above as a contradiction to fault the case for thirteen branches. And, that it is only when a contradiction cannot be explained that the Court will use it as a yardstick for the rejection of the party’s case.
Counsel referred to the cases of Odi V. Iyalla 27 WRN 1 at 5 and Aguncha V. Aguncha (2004) 43 WRN 17 at 22 and submitted that the evidence of the Respondent and those of his witnesses are full of contradictions and inconsistencies which the Court cannot pick and choose going by the law.
?
Counsel submitted that even if the
learned trial Judge were right to have partitioned any land at all it is only Ipawo which he ought to order partition of.
That from the evidence of the Respondent himself, he admitted that the one occupied by Ijasa were jointly owned by Ijasa and Ayijen or Odo and that all members of Ajiyen/Odo family fought the battle with Ijasa before partitioning the land for them. That the land in dispute then includes Ipawo. This, according to Counsel goes to refute the claim that the Respondent has been in possession of the land (Ipawo or Idaho) since their arrival from Ife.
He urged us to re-evaluate the evidence in the case and ascribe probative value.
In response to Appellant’s issues one and two, Learned Counsel for the Respondent reminded us that it is evident on the Respondent’s Writ of Summons that the partition sought is not in the nature of sharing a joint holding into two but rather that which is to retain parties on their “initial strand at inception”, as it was in the good old days of the parties forefathers.
That from the evidence before the Court, parties know the extent of their individual family holding on the said land before the
Appellant started trespassing.
Counsel submitted that the Respondent averred in his statement of claim that:
?…Ipawo has always been cultivated by descendents of Jagele while Ikode is usually cultivated by descendants of Aribala.”
That this averment was reiterated by the Respondent in his evidence-in-chief at page 58 of the records and was not faulted on cross-examination.
He submitted that the only attempt to controvert same was in a general traverse in paragraph 6 of the statement of defence coupled with the Appellant’s position under cross examination that:
“I know Ipawo farmland. It is true that the Defence now own Ikode farmland exclusively.” (Pages 74 – 75 of records).
The claim before the Court, according to Respondent’s Counsel is more of an emphatic pronouncement on the -already partitioned land (Ipawa) in possession and exclusive ownership of the Respondent. He submitted that the substance of the Respondent’s claims could be found in paragraphs 4b, 4b, 4c, 4d, 5 and 7 of the statement of claim.
?Counsel submitted that the evidence of the Respondent as PW1 that Jagele was his grandfather who came from Ile-Ife
with Aribisala. That Aribisala, the grandfather of the Appellant was brought to the land by Jayele and are members of the same Odo or Ayijen family was correlated by PW3.
That in contrast the Appellant’s material inconsistencies. For example, that DW3 said it is not true that the Defendant’s family settled at Ikode farmland contrary to the DW1’s evidence in chief that the Defendant now own Ikode exclusively. That the Appellant on his own told the Court that he knows the point called Ikode on his family land and that Aribisala (his family) controls Ikode portion of the family land where he also has his farm.
Counsel submitted that DW4 is one breath said that it is not true that the family of the Respondent is the one farming and building houses on Ipawo farmland. But, that in another breath, he (DW4) said the house of the Respondent is at Ipawo. He submitted that DWs at page 84 of the records said that the Appellant and his people farmed at Ikogbe. That the Respondent and his people live and farm at Ipao. They do not come to Ikogbe. “Plaintiff has his house at Ipao”, Respondent’s Counsel repeated the evidence of the Appellant at page 90 of the record
under cross examination that:
“The Plaintiff and his brothers have their house in Ipao farmland. Ikode farmland is part of my family land. It is true that I am using Ikode farmland exclusively for myself.”
He submitted that the above lends credence to the Respondent’s case.
He submitted further that the Respondent maintained that there are two families constituting the entire Jagele family of Agbaluku Arigidi Akoko where the Appellant’s family also originated. That the Respondent called witnesses who gave evidence in that regard particularly how the land in dispute had in time immemorial been named Ipawo and Ikode with a common boundary at Ihawaja. For example that the evidence of DW2 is to the effect that he takes contributions in equal half whenever occasion demands from both families that were one from the onset.
?
The burden placed on the Respondent according to Counsel was well too discharged consequent upon which the onus shifted to the Appellant at the point where he said there are thirteen families forming the branch from a common ancestral origin. That the Appellant called witnesses who testified inconsistently to the existence of
this fact. In particular is DW1 who could not mention the names of the thirteen families.
Counsel submitted that the Appellant and his witnesses contradicted themselves on how and from where Jagele brought Aboki Ijala to Ijasa land. While one said it was from Ayere, the other said it was from Ogidi in kwara State.
Also that while some claimed that Oluya came from Ile-Ife alone, others claimed that twelve branches of Olodo Ajiyan family came from Ile-Ife together while the thirteen later joined them.
He submitted that the Appellant’s assertions remained but was without cogent proof. First, he said, is the failure to state the chain of succession from one ancestor to the other and second is the failure to state how they farmed on either the Ipawo land or the Ikode land. That at one point, DW1 stated that that the thirteen families farmed at Ihawaja farmland which is a swamp.
Respondent’s Counsel referred to the cases of J. O. Osidele V. Moses O. Sokunbi (2012) All FWLR (Pt. 645) 198 at 213; Duru V. Nwosu (1989) 4 NWLR (Pt. 113) 24 and Aromire V. Awoyemi (972) 2 SC 1 and submitted that the Appellant has a duty under the law to discharge the
onus placed on him having raised facts contrary to the position of the evidence in rebuttal to the presumption of the prima facie case, especially being a counter claimant.
RESOLUTION OF ISSUES ONE AND TWO.
There are two related points in the exercise of the duty of evaluation of evidence carried out by the learned trial Judge in the instant case. The first is the nature of the Respondent’s case for the partition of existing separation holdings of land as it were jointly by a single family, that is the Odo/Ayijen family of Arigidi Akoko. The second is the question whether the Odo/Ayijen family consists of two branches as alleged by the Respondent or thirteen branches as contended by the Appellant.
There is no doubt, and quite contrary to the suggestion of the Learned Counsel for the Appellant in this case that the evidence of the Respondent are in accordance with his pleadings on the position that the parties had held different holdings of land that is Ipawo and Ikode from time immemorial separated by a swampy piece of land called Ihawaja.
Paragraphs 1 to 5 of the Respondent’s statement of claim bear testimony to the pleadings and
the evidence tendered in this case.
“1. The Plaintiff, a farmer who resides at No. 23 Agbaluku Quarters brings this action on behalf of himself and other members of Jagele Olodo of Odo family of Agbaluku Quarters, Arigidi Akoko, Ondo State of Nigeria.
2. The Defendant, the current Olodo of Odo issued on behalf of himself and other members of Aribisala family of Odo Quarters, Agbaluku Quarters Arigidi Akoko, Ondo State of Nigeria.
3. The avers that the land in dispute in this matter called Odo family farmland is located at Agbaluku, Arigidi Akoko Ondo State of Nigeria and it is separated into 2 portions by a swampy strip of land called Ihawaja farmland cultivated in the past solely by Plaintiff’s father and one Osere his brother from Jagele family.
4. Further to paragraph 3 above the names of the 2 portions are called Ipawo and Ikode farmlands,
4(a). The Plaintiff avers that the land in dispute is surrounded or bounded as follows:
(i) On one side by Ugbe – Akoko people’s land, and the portion of the land in dispute on that side is called Ikode farmland.
(ii) On another side the land in dispute has boundary with Ijasa
family land of Agbaluku quarters, Arigidi Akoko.
(iii) On the remaining side the land is bounded by Gbadayi family land of Agbaluku, Arigidi Akoko.
4 (b) The Plaintiff avers that Jagele the first leader of Plaintiff’s people migrated from Ife with his family in the olden days and settled at a place called “Igbo Ahamo” not far from the present site of Agbaluku Quarters Arigidi, Akoko.
4 (c) The Plaintiff avers that after several years at Ahemo, Plaintiffs ancestors for reasons of inter tribal wars, notably from NUPE invaders moved to the present site of Agbaluku where they joined other Arigidi people and has since been farming on the land in dispute on its area called Ipamo farmland when it was virgin land inhabited only by snakes and other dangerous animals.
4 (d) The Plaintiff avers that Aribisala the leader of Defendants people who was a near relation of Plaintiff’s people and who was part of entourage of Jagele was then farming on the part of the land called “Ikode”.
5. The Plaintiff avers that Ipawo has always been cultivated by descendants of Jagele while Ikode is usually cultivated by descendants of Aribisala …?
?From
the pleadings and evidence in the instant case, it is clear that the partitioning of Ipawo and Ikode farmlands of the parties to the case had been existing from settlement. Therefore, the pleadings and evidence of the Respondent satisfied the expressed in the case of Olorunfemi V. Asho (2000) 1 SC 1 at 15 that it is settled law that to succeed in a claim of ownership of land based on partition, evidence of how and when the said exercise in partition was executed must naturally be established.
Indeed, where in a land matter as in the instant case, the dispute between the parties is as to what features marks the boundary between them, there is no reason for tracing traditional histories. A party needs to trace such history only where his link to the disputed land is in contest or where he has to prove his root of title.
See Prince Will V. Amachree (2005) 3 NWLR (Pt. 912) 358.
The parties in this case agreed that the Appellant is in exclusive possession of Ikode farmland which is part of Odo/Ayijen family land. The evidence of the Respondent is that his father owned Ipawo land while the land of the Appellant is Ikode.
?
The attempt by the
Appellant to disprove the prima facie case put forward in this respect failed because the story of the Respondent was more consistent, more probable and therefore preferable to that of the Appellant.
The rationale for preferring the evidence of the Respondent to that of the Appellant would be found at pages 117 – 118 of the records where the learned trial Judge held first at page 117 that:
“On his own part, the Defendant testified that when their forefathers migrated from Ile-Ife, they settled at Ipawo. Contrary to the position of the Defendant, the DW5 stated under cross-examination that the Plaintiff and his people live and farm at Ipawo (Ipao) and they do not go to Ikode. The D.W 4 and D.W5 under cross-examination confirmed that the Plaintiff has his house in Ipawo. The D.W5 under cross-examination confirmed that the Plaintiff has his house in Ipawo. The D.W.3 however went in opposite direction to the position of the DW5 when he stated under cross examination that the Plaintiff and his people are not the ones on Ipawo land”.
Still at page 117, the learned trial Judge remarked further:
“In another breath, the D.W.4 stated under
cross examination that it is not true that the family of the Plaintiff is the one farming and building houses on Ipawo farmland, The Defendant however agreed under cross examination that the Plaintiff and his brothers have their houses on Ipawo farmland. The Defendant stated in his evidence that Aribisala family controls Ikode (Ikogbe) portion of the family land that that is where he has his farm. That he cannot sell Ipawo land without reference to the Plaintiff.”
At page 118 of the record, the learned trial Judge also noted on the issue thus:
“The Defendant and his witnesses contradicted themselves on how and from where Jagele brought Aboki Ijala to Ijasa land, While one said it was from Ayere the other said it was from Ogidi in Kwara State. Also while some claimed that Oluya came from Ile-Ife alone, others claimed that twelve branches of Odo/Ayijen family came from Ile-Ife together while the thirteenth later joined them.”
In the circumstance, the learned trial Judge referred to the cases of Akuchie V. Nwamadi (1992) 8 NWLR (Pt. 258) 224 and Ayanwale V. Nwamadi (1991) 8 NWLR (Pt. 258) 214 and Ayanwale V. Atanda (1988) 1 SC 1 at 3 and 5,
considered that the evidence of the Appellant is at variance with his witnesses without any explanation and therefore rejected the evidence of the Appellant on the issue.
On the related second issue as to how many branches made up to how many branches made up to how many branches made up the Odo/Ayijen family, the Respondent gave evidence that Odo family is made up of two families/units and not thirteen units.
The Appellant on his part testified that Odo is made up of thirteen branches and went ahead to list them. The DW1 however listed only twelve branches including Osula. When the DW1 was cross examined, he agreed with the suggestion of Learned Counsel for the Plaintiff (Respondent) that it is written at the bottom of page 40 of Exhibit D4B (Minutes book of the family) that Osula is not a member of Ayijen family.
?
On the above, the learned trial Judge observed at pages 119 – 120 of the record of appeal that:
“The question which the Defendant failed to provide an answer to is how the thirteen branches came about in view of the position taken by the Defendant that Oluya begat Osonlorin who in turn begat Aribisala and that Aribisala brought
the grandfather of the Plaintiff from Ayere. The DW5 tried to provide an answer when he stated that twelve branches came from Ile-Ife and the thirteenth later joined them but he failed because his evidence was not supported by the pleadings of the Defendant and that piece of evidence is at variance with the evidence of the Defendant that Oluya came alone from Ile-Ife. In the circumstances, the learned trial Judge considered that the credibility of the Appellant is destroyed and concluded rightly in my view that Ayijen/Odo family is made up of two units, that is Aribisala and bello.”
More importantly, it is obvious from the above discussion that the learned trial judge properly evaluated the evidence before the Court in coming to prefer on a balance of probabilities the evidence of the Respondent to that of the Appellant. The evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial Court which saw, heard and duly assessed the witnesses.
?Where a Court of trial as in the instant case, unquestionably evaluates the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to
find out whether there is evidence on Record on which the trial Court have acted. Once there is sufficient evidence on record from which the trial Court arrived at its finding of fact, the Appellate Court cannot interfere.
See: Chief J. Okeowo V. Attorney General of Ogun State (2010) 5 – 7 SC (Pt. 11) 129; Military Governor of Lagos State & 4 ors V. Adebayo Adeyiga & 6 ors (2012) 2 SC (Pt. 1) 68; Osuji V. Ekeocha (2009) 6 – 7 SC (Pt. 11) 91; Cyriacus Nnadosie & 3 ors V. Nze Ogbunelu Umagwu (2008) 1 SCNL 219; Oyibo Iriri & Others V. Eseroraye Erurhodare & Anor (1991) 3 SCNJ 1.
In the instant case, the trial Court properly evaluated the evidence on record and this Court has no business in interfering and/or substituting its own views on fact with those of the trial Court.
Issue one and two are resolved against the Appellant.
Learned Counsel for the Appellant practically repeated his arguments on issues one and two in attacking the trial Court’s evaluation of the counter claim in his issue three.
He added on the issue of unilateral sale of land by the Respondent without recourse to the Appellant as head of the family
that learned trial Judge fell into error by holding that he would not make such an order voiding such a sale because those affected were not before him.
He urged that a sale of family land without the consent of the head of the family is void. He urged us to resolve the issue of the evaluation of the counter claim in favour of the Appellant.
Learned Counsel for the Respondent adopted his previous arguments on Appellant’s issue three. He submitted that the foundation of the Appellant’s counter claim has been rendered nugatory for lack of credible, cogent and reliable evidence and was rightly dismissed by the learned trial Judge.
RESOLUTION OF ISSUE THREE
I have already provided answers to Appellant’s issue three in my treatment of issues one and two. The Appellant did not provide credible, cogent and reliable evidence in support of the counter claim. The learned trial Judge was also right when he held in respect of those that were not parties before the Court at page 124 of the record as follows:-
“The Defendant seeks an order declaring as void all sale or alienation of Odo/Ayijen family land so fat made. The evidence on sale of land
made against the Plaintiff is in respect of Ipawo farmland, The Plaintiff only admitted selling part of the land to Cornerstone and one Adeyemo. Declaring the sample of any parcel of Ipawo land by the Plaintiff as void will affect the proprietary right of others who are not parties to this case. It will be a denial of fair hearing contrary to the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria for this Court to make an order that will affect the rights of persons who have not been heard.
Relief 2 is therefore refused.”
Indeed, orders of Court in an action are not binding on non-parties to the action.
Pelfaco Ltd V. WA. O.S. Ltd (1997) 10 NWLR (Pt. 524) 222. The general rule of law is that no person is to be adversely affected by a judgment in an action to which he was not a party, because of the injustice in deciding an issue against him.
See Tunde Osunrinde & 7 Ors V. Mutairu Togun Ajamogun & 5 Ors (1992) SCNJ 79; National Union of Road Transport Workers & Anor V. Road Transport Employers Association of Nigeria and 5 Ors (2012) 1 SC (Pt. 11) 119.
Issue Three is also resolved against the
Appellant.
Having resolved, the three (3) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
There shall be no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:
I agree.
JAMES SHEHU ABIRIYI, J.C.A.:
I read in advance, in draft judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA.
He has dealt fully with the issues for determination. I adopt his reasoning and conclusions. I too dismiss the appeal.
?
I abide by the order as to costs.
Appearances
Gani Ashiru, Esq.For Appellant
AND
H. I. Akingbesode with him, A. A. Olubusade, Esq.For Respondent
