CHIEF AKANDE FOLARANMI & ANOR v. AKANBI AKINYEMI & ORS
(2018)LCN/11838(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
RATIO
EVIDENCE: WHETHER COURT ARE BOUND BY THE PLEADINGS
“It is also the law that parties and indeed the Court are bound by the pleadings. Accordingly, where evidence is led on facts which have not been pleaded, the Court will treat such evidence as inadmissible. In other words, evidence led on facts which have not been pleaded would go to no issue and accordingly discountenanced. See Calabar Central Co-operative Thrift a Credit Society Ltd & Ors v. Ekpo (2008) 6 NWLR (pt.1083) 362; Okwejiminor v. Gbakeji & Anor (2008) 2 FWLR (pt.417) 2013 and UBN Plc & Anor v. Ayodare & Sons (Nig.) Ltd & Anor (2007) 13 NWLR (pt.1052) 567. In the same vein, where no evidence is adduced on any fact pleaded, such fact pleaded would be deemed abandoned, and liable to be struck out. See Olusanya v. Osinleye (2013) 5 SCNJ 660; Adegbite v. Ogunfaolu & Anor (1990) 4 NWLR (pt. 146) 578 and Dada v. Ogunsanya & Anor (1992) 3 NWLR (pt. 332) 754.” PER HARUNA SIMON TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Ogun State High Court of Justice, sitting at Ota in the Ota Judicial Division, delivered by A. A. Akinyemi, J on the 27th day of October, 2006.
By a Writ of Summons and Statement of Claim dated the 19th day of May, 2003 and filed on the 20th day of May, 2003, the Appellants who were Plaintiffs in the Court below, sought the following reliefs:
1. AN ORDER setting aside the sale by the 1st Defendants of all that parcel of land measuring approximately 11/2 acres of land lying and situate at Ideko Area of Baale Akinosi Town in Ifo Local Government Area of Ogun State.
2. The sum of five hundred thousand naira (N500,000.00) as general damages for trespass committed by the Defendants on the Plaintiffs land, lying and situate at Ideko Area of Baale Akinosi Town.
3. Perpetual Injunction against the Defendants and their servants, agents and privies from further trespassing on the Plaintiffs land.
The Respondents, who were Plaintiffs responded by filing a Joint Statement of defence.
It was dated the 30th day of September, 2003. The Plaintiffs/Appellants then filed a Reply to the statement of Defence. It was dated and filed on the 15/6/2004. Issues having been joined, the matter went to trial.
The Plaintiffs/Appellants case was adequately summarized by the learned trial Judge in his judgment at page 82 lines 13 34 of the Record of Appeal as follows:
That the land in dispute belongs to their ancestor, one Akinosi who obtained a grant of it from Ogundimu. That after the death of Akinosi the land devolved over the years upon his descendants. That their family has never sold the portion of land in dispute to the 2nd and 3rd Defendants who they suddenly found on the land about the year 2000 developing same. They challenged the Defendants and after negotiations, they resolved to let the 2nd Defendant (who is the father of the 3rd Defendant and who is the main Defendant claiming ownership of entire land) keep 10 plots out of the 13 plots in dispute and relinquish the remaining 3 plots to the Plaintiffs family. That consequent upon this agreement the Plaintiffs proceeded to fence off the relinquished 3 plots.
Shortly thereafter, they were surprised to find that the 2nd Defendant went and fence in all the 13 plots including the 3 plots the Plaintiffs had earlier fenced. The Plaintiffs claim that the family of Adenle, to which the 1st Defendant belongs and from whom the 2nd Defendant purported to have bought the land had no right to sell the land as they have no land at Akinosi. They denied that both Akinosi and Adenle cofounded Akinosi Town, although they conceded that Adenle also had land in Akinosi, and that the Baaleship of Akinosi is rotated between their two families. The 1st Plaintiff admitted that the immediate past Baale of Akinosi before him was the father of the 1st Defendant from Adenle family.
The case of the Defendants/Respondents was also summarised by the learned trial Judge at page 82 line 34 83 line 26 of the Record of Appeal as follows:
On the other hand, the case of the Defendants is that the 2nd Defendant, father of the 3rd Defendant, bought the land in dispute from the 1st Defendant, a member of Adenle family of Akinosi. That Adenle and Akinosi, and other persons co-founded Akinosi Town and each family had its separate land which it founded and settled on, and that the portion now in dispute falls within Adenles land. 1st Defendant testified that the entire land of Adenle was 40 Acres which was partitioned amongst his children. His daughter Ogunsesi got 4 Acres which devolved on her only child the father of 1st Defendant. His father gave the land to him in his lifetime, and he sold part of it to the 2nd Defendant with the knowledge of all his family members. Although in their pleadings, the 2nd Defendant stated that he first bought the subject land from the Plaintiffs family on 20th March, 1978, before again repurchasing the same land from the 1st Defendant on 26th March, 1978, in giving evidence, the Defendants seemed to abandon that part of their pleading as they gave no evidence of it testifying and relying only on the purchase from the 1st Defendant. 2nd Defendant claimed that after purchase from the 1st Defendant, he immediately took physical possession and started building on the plots of land. He also surveyed same and obtained the Certificate of Occupancy of the Ogun State Government to the land as far back as 31st May, 1998.
He fenced the entire land round, and has been in undisturbed possession of it for several years before this suit was filed. The 3rd Defendant is his son, and he gave him one plot out of the land on which he built his own house in which he was living for over 7 years now. 2nd Defendant even litigated over the portion of the land for several years with the Grail Movement of Nigeria, until the later had to acknowledge his title to the land. He denied ever reaching any agreement to concede (sic) 3 plots out of the land to the Plaintiffs family and relies on laches, acquiescence and long possession.
At the trial, the Plaintiffs/Appellants presented their case through three witnesses who testified as PW1, PW2 and PW3 respectively. The Defendants on their part presented their case through DW1, DW2, DW3, DW4 and DW5 respectively. Three exhibits were tendered, admitted and marked as Exhibits A , B and C respectively. At the close of evidence, the parties filed and exchanged Written Addresses, and in a considered judgment delivered on the 27th day of October, 2006, the learned trial Judge found the Plaintiffs/Appellants claims as not proved, and consequently dismissed same entirely. It is against that judgment that the Appellants filed this appeal.
The Notice of Appeal at pages 94 101 of the Record of Appeal was dated and filed on the 25/01/2007. It consists of ten (10) Grounds of Appeal, and in obedience to the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants Brief of Arguments dated the 23/6/2017 was filed on the 23/6/2017 but deemed filed on the 28/9/2017. Seven (7) not eight (8) issues as erroneously listed by the Appellant were formulated therein for the determination of this Court as follows:
1. Whether the rule in Kojo v. Bonsie is applicable in this case having regard to the state of the pleadings and evidence presented by both parties at the trial.
2. Whether the learned trial Judge did not misdirect himself by granting a relief not claim (sic) by 2nd Respondent when he held that the 2nd Respondent has shown a better title to the land in dispute.
3. Whether the learned trial Judge was right in law to have made findings of facts not borne out of the pleadings and evidence of both parties at the trial.
4. Whether the learned trial Judge was right to have raised an issue suo motu in his judgment, that is mostly unlikely and is not normal Yoruba custom that a non land owning family would produce Baale of a Village or town where his family had no land, over the sole land owner, without giving the parties the opportunity to address the Court in it.
5. Whether there is any legally admissible evidence to support the conclusion reached by the learned trial Judge, that there are other evidence to support a valid sale to the 2nd Respondent by the 1st Respondent after rejecting as inadmissible the document sought to be tendered by the 2nd Respondent in support of the sale to him by the 1st Respondent.
6. Whether it is permissible in law for a party to set up a case at the trial different from their pleadings as did (sic) by the Respondent in this case.
7. Whether the decision of the trial Court is not erroneous and or perverse.
The Respondents Brief of Arguments is dated and filed on the 03/8/2010 but deemed filed on the 28/9/2017.
The Respondents on their part, raised three issues for determination as follows:
1. Whether the trial Judge should have granted the claims of the Appellants notwithstanding that the evidence of traditional history solely relied upon by the Appellants was conflicting, contradictory and not cogent.
2. Whether in view of the pleadings and evidence adduced before the trial Court and the state of the law, the Appellants are entitled to have the sale of land between the 1st and 2nd Respondents set aside.
3. Whether from the pleadings and evidence adduced at the trial Court, the Appellants established a case of trespass against the Respondents.
After a very careful consideration of the issues formulated by the parties, I am of the view that, this appeal be resolved on the issues formulated by the Appellants. In doing that, I shall consider issues 1, 2, 3 and 7 together. Issues 4, 5 and 6 will each be treated separately. I shall begin by considering issue 4.
On issue 4, learned counsel for the Appellant had argued that the learned trial Judge raised the issue of Yoruba Custom, to wit: that, it is most unlikely and not normal in Yoruba custom that a non land owning family would produce the Baale of a Village or Town whose family has no land, over the family which is the sole owner of land in the Village or Town. That the learned trial Judge raised and resolved the issue without calling on the parties to address him on it, and thereby infringing the Appellants Fundamental Right to Fair Hearing. That, the approach is most damaging to the case of the Appellants considering the fact that the trial Court relied heavily on it to resolve the sole issue against the Appellant.
Learned Counsel then cited the cases of State v. Oladimeji (2003) FWLR (pt.175) 395 at 398 400 and Adejumo v. Davis Hughes Ltd (1989) 5 NWLR (pt.117) 592 to further submit that, it is the law that, on no account should a Court raise a point suo motu, no matter how clear it may appear to be and proceed to resolve same without inviting the parties to address it on the point. It was then contended that the question of applicable customary law to the issue of Baaleship of Akinosi Village was not an issue at the trial nor did the trial Court invite counsel to address it on the issue. We were accordingly urged to set aside the finding(s) of the trial Court based on that point.
Learned Counsel for the Respondents contended that, the Appellants misconceived the findings of the trial Court which was arrived at after a diligent evaluation of the pleadings, evidence and the demanour of the witnesses in Court. It was then submitted that, the statement of the learned trial Judge complained of is a mere obiter dictum, and not the ratio decidendi of the case. That it is just a statement or opinion of common sense as opposed to the arguments of the Appellants that the learned trial Judge raised an issue suo motu based on his own personal knowledge without inviting the parties to address him on it. The cases of Oshodi v. Eyifunmi (2000) 13 NWLR (pt. 684) 298 and A.I.C. Ltd v. Nigerian National Petroleum Corporation (2005) 5 S.C. (pt.II) 60 were cited in support; and to further submit that the Appellants case failed for abysmal failure to prove their case and not based on the stipulation or opinion of the learned trial Judge on any Yoruba custom as wrongly argued by the Appellants.
It was further argued that the Supreme Court has determined in Ikenta Best (Nig.) Ltd v. A.G; Rivers State (2008) 2 3 S.C. (pt.I) 28 that, inferences drawn by a Judge from the facts of a case are not issues raised suo motu. That the learned trial Judge drew inference from the Appellants claims,and that once it was clear that Adenle, the ancestor of the 1st Respondent also owned land in the area, a duty was imposed on the Appellants to show that the portion of land purportedly trespassed upon is that of the Appellants. That, having admitted that Adenle family owned land in the area, the Appellants however failed to show that the land claimed by them is Akinosi land.
In reply on points of law, learned counsel for the Appellants insisted that, the learned trial Judge used the issue raised suo motu as the basis for concluding that the 1st Respondents family is a land owning family on Akinosi land.
Now, it is the settled law that Courts are to determine disputes on the issue placed before them for adjudication. Thus, no Court is permitted to raise suo motu an issue not placed before it by the parties, and proceed to resolve same without hearing the parties on the point. No doubt, a Court is allowed to raise an issue suo motu, if that issue is material to the determination of the dispute before it, but before resolving the point or issue, the parties to the dispute must be invited to address the Court on it. See Eagle Super Pack (Nig.) Ltd v. A.C.B. Plc (2006) 19 NWLR (pt.1013) 20; Effiom & Ors v. CROSIEC & Anor (2010) 14 NWLR (pt.1255) 209 and Obawole & Anor v. Williams & Anor (1996) 10 NWLR (pt. 477) 146. Thus in the case of Mabamije v. Otto (2016) LPELR SC, My Lord, Rhodes-Vivour, JSC said:
The long settled position of the law is that a Court would not suo motu raise issues which the parties do not raise. Both sides must be given the opportunity to address the Court on issues raised suo motu. Where this is not done, it may be held that the party denied the opportunity to address the Court was denied fair hearing.
It must be noted that the fact that a Court raised and resolved an issue suo motu without calling on the parties to address on it, would not necessarily lead to a reversal of the decision. To warrant a reversal of the decision on appeal, the Appellant must show that the failure to hear him on the point occasioned some miscarriage of justice. See Olubode v. Salami (1985) 2 NWLR (pt. 7) 282 and Imah v. Okogbe (1993) 9 NWLR (pt. 316) 159 at 178. In the instant case, the complaint of the Appellant relate to the statement of the learned trial Judge at pages 88 line 31 89 line 5, where the learned trial Judge said:
Weighing the evidence of both sides especially on the issue of who founded Akinosi Village which has become an important sub-issue, it seems to me that the evidence of the Plaintiffs to the effect that Akinosi founded and owned the whole land at Akinosi cannot be and is not true. What seems to me more probable from the evidence, is that both Akinosi, Adenle and indeed, other families co-founded and had land at Akinosi Village, as it is most unlikely and is not normal Yoruba custom that a non-land owning family would produce the Baale of a Village or Town where his family had no land, over the sole land owner.
It is clear to me that, the statement made by the learned trial Judge and quoted above, was made as an analogy from Yoruba custom generally, in the course of evaluating the evidence adduced before him.
There was contention as to the founding of Akinosi Village with Appellant contending that his progenitor, Akinosi was the sole founder of the Village which was named after him. There was however evidence that, apart from Akinosi, there were other land owning families in the area or Village. The Appellant had conceded that the 1st Respondents progenitor, Adenle had land in the area. In the face of evidence that Adenle and other families own land in the area, and most importantly, the evidence that the 1st Respondents father was the predecessor of the 1st Appellant as the Baale of Akinosi Village, the learned trial Judge made the statement quoted to buttress the fact that, the contention of the Appellants that Akinosi was the sole owner of the whole of Akinosi Village cannot be true. By making the above analogy, the learned trial Judge was not in any way introducing Yoruba Customary Law on the issue, though he was entitled to take judicial notice of such custom.
Furthermore, I agree with learned counsel for the Respondents that the said statement was not the reason for the finding of the learned trial Judge that Akinosi could not have been and was in fact not the sole owner of Akinosi Village.
In other words, the statement is not the ratio decidendi (reason for the decision). It is a statement made obiter mainly to elucidate the finding of the trial Court. See Omoniyi v. Alabi (2015) LPELR 24399 (SC); N.D.I.C. v. Okem Enterprises Ltd & Anor (2004) 10 NWLR (pt. 880) 107 and A.I.C.Ltd v. N.N.P.C. (2005) LPELR 6 (SC). The decision of the trial Court on whether Akinosi was the sole owner of Akinosi Village was arrived at based on the evidence before the Court, and not the opinion of the learned trial Judge expressed on the issue of Yoruba Custom. It is my view that this issue should be and is hereby resolved against the Appellants.
On issue 6, learned counsel for the Appellant argued that, the learned trial Judge found in his judgment that the Defendants had abandoned their pleadings. Learned Counsel referred to the findings of the trial Court at pages 83 lines 3 16 and 89 lines 18 30 of the Record of Appeal; paragraphs 7, 9, 11(a), 15 and 17 of the Statement of Defence and testimonies of DW3 and DW5, to submit that, the learned trial Judge erred when he accepted evidence which the pleadings did not support. That, the only evidence with reference to the issue of sale of Adenle family land was given by the 1st and 2nd Respondents; and that their testimonies on the issue of sale and possession are inadmissible having not been pleaded.
Learned Counsel for the Appellant went on to submit that, having admitted to purchasing the land in dispute from the Appellants family, the 2nd Respondent is bound by the admission and therefore cannot be heard later to deny that fact. The cases of Mallam Jimoh Salami & Anor v. Mallam Aliyu A. Yusuf (2001) NWLR (pt.1049) 707 at 716 and George v. Dominion Flour Mills Ltd (supra) at 77 were cited to submit that, such evidence that is contrary to the pleadings ought not to have been admitted as it went to no issue. The case of Pascutto v. Adecentro (Nig.) Ltd (1997) 11 NWLR (pt. 529) 467 was then cited to urge that such evidence wrongly admitted should be ignored or disregarded. It was further contended that the testimonies of DW3 and DW5 on the issue of sale and possession were admitted in error by the trial Court and should therefore be treated as abandoned along with pleadings thereon.
Learned Counsel for the Appellant also argued that the learned trial Judge after holding that the Respondents had abandoned their pleading, proceeded to find that the 2nd Defendant/Respondent immediately took physical possession after the purchase from the 1st Respondent. It was then submitted that by so holding, the trial Court set up a case different from that the Appellants were prepared to meet at the trial, thereby defeating the aim of pleadings. The cases of Isheno v. Julius Berger (Nig.) Plc (2008) FWLR (pt. 415) 1632 at 1635 and Alhaji Atiku Abubakar & Ors. v. Alh. Umaru Musa Yaradua & Ors (2009) All FWLR (pt. 457) 1 at 48 were cited in support and to urge us to resolve this issue in favour of the Appellants.
In response, learned counsel for the Respondents, cited the case of Ayanboye v. Balogun (1990) 9 10 S.C.1, to submit that by the very first prayer of the Appellants, which seeks to set aside the sale of the land in dispute by the 1st Respondent to the 2nd Respondent, it is sufficient to conclude that the sale of land actually took place between the 1st and 2nd Respondents. That the evidential burden was on the Appellant to prove the existence of such sale. We were accordingly urged to hold that the Appellant misconceived the issue.
Now, in law, pleadings are statements of fact and convey what a party to a suit relies on to either prove or defend a cause. Pleadings are therefore required to be clear, positive and unambiguous. They are also not to be evasive or misleading. This is because, the primary function of pleadings is to ascertain with precision the various matters that are in contention between the parties. They also help to point out the issues on which they agree, thereby helping the Court to understand the real issues in controversy between the parties. See Esso Petroleum Co. Ltd v. Southport Corp. (1956) A.C. 218 at 241; Nwanji v. Coastal Services Nigeria Ltd (2004) 6 7 S.C.38 and Morohunfola v. Kwara College of Technology (1990) 4 NWLR 9pt.145) 506.
It is also the law that parties and indeed the Court are bound by the pleadings. Accordingly, where evidence is led on facts which have not been pleaded, the Court will treat such evidence as inadmissible. In other words, evidence led on facts which have not been pleaded would go to no issue and accordingly discountenanced. See Calabar Central Co-operative Thrift a Credit Society Ltd & Ors v. Ekpo (2008) 6 NWLR (pt.1083) 362; Okwejiminor v. Gbakeji & Anor (2008) 2 FWLR (pt.417) 2013 and UBN Plc & Anor v. Ayodare & Sons (Nig.) Ltd & Anor (2007) 13 NWLR (pt.1052) 567.
In the same vein, where no evidence is adduced on any fact pleaded, such fact pleaded would be deemed abandoned, and liable to be struck out. See Olusanya v. Osinleye (2013) 5 SCNJ 660; Adegbite v. Ogunfaolu & Anor (1990) 4 NWLR (pt. 146) 578 and Dada v. Ogunsanya & Anor (1992) 3 NWLR (pt. 332) 754.
The complaint of the Appellants here is that, the trial Court set up a case different from their pleadings. That aspect has to do with the pleadings of the Respondents in paragraphs 7, 9, 11(a), 15 and 17 of the Statement of Defence and the testimonies of the 1st and 2nd Respondents (DW3 & DW5) thereon. The Respondents had pleaded as follows:
7. The 1st and 2nd Defendants aver that the 2nd Defendant purchased a parcel of about 12 plots of land bought together as a single parcel on 20th March, 1978 from the then Head and Principal members of Akinosi family acting for and on behalf of their family, and he was immediately led into possession in the presence of many witnesses.
9. The 2nd Defendant avers that he enjoyed undisturbed possession of the land since 20/3/78.
11(a). The 2nd Defendant avers that he immediately after the purchase in 20/3/78 took over physical possession of the said 12 plots of land and built 4 houses on some of the plots therein without disturbances from any person or persons ever since.
15. The Defendants aver that the Plaintiffs were minors when the 2nd Defendant bought the plots of land in only one indivisible transaction.
17. The Defendants will contend at the trial that it is untenable for the Plaintiffs to belatedly challenge what his family Head and Principal members rightly did on behalf of the family when they, the Plaintiffs were minors.
It is clear to me, from the above stated pleadings, that the Respondents pleaded facts relating to the transaction or sale between the Appellants family and the 1st Respondent, which sale took place on the 20/3/1987. At the trial, the 1st Respondent who testified as the DW3 stated that he sold the land to the 2nd Respondent. He stated in lines 20 23 of page 51 of the Record of Appeal as follows:
When I sold the land to the 2nd Defendant, executed a document for him.
The said document evidencing the sale was tendered but rejected as evidence.
The 2nd Respondent testified as the DW5. He testified that he bought the land from Akanbi Akinyemi (1st Respondent), who put him into possession. That he bought the land from the 1st Defendant/Respondent about 30 years ago; and that he immediately built a fence round it. It is obvious therefore that there was no evidence from the Respondents pertaining the sale between the Appellants family and the 1st Respondent. There is therefore no evidence on the facts pleaded in paragraphs 7, 15 and 17 of the Statement of Defence. The learned trial Judge therefore found that, in line with the law that, those paragraphs of the Statement of Defence are deemed abandoned. After reflecting on the arguments of learned counsel for the Appellants in pages 22 27 of the Appellants Brief of Arguments, I cannot find any challenge to that decision of the trial Court that those findings are deemed abandoned. The learned trial Judge however realized that the Respondents pleaded in paragraph 8 of the Statement of Defence that to avoid or avert trouble, he repurchased the land from the Adenle family on the 26/3/78 when he paid consideration for the purchase. The effect therefore is that, the Respondents abandoned their pleading on purchase by the 2nd Defendant from the Appellants family but led evidence of the purchase from 1st Respondent in line with the pleading in paragraph 8 of the Statement of Defence.
On the issue of possession, the evidence of possession led by the 1st and 2nd Respondents (DW3 and DW5) ought to have been treated by the trial Court as having been abandoned. That the issue of possession related to the purchase from the Appellants family, and the evidence of sale from that family having been abandoned, the evidence of possession thereon, should also have been treated as having been abandoned. It should be noted that the fact of possession of the land in dispute should not be equated with the issue of title to the land vide the sale pleaded in paragraph 7 of the Statement of Defence.
In other words, the facts of sale is a different thing from the fact of possession. In any case, the fact of sale of the land to the 2nd Respondent, whether valid or invalid is not in dispute. Indeed, the mean claim of the Appellants (prayer 1) is eloquent testimony of the fact of sale, between the 1st Respondent and the 2nd Respondent. Furthermore, it is those facts of possession exercised by the 2nd Respondent over the land in dispute that gave rise to the prayer of damages for trespass.
From the facts pleaded in the Statement of Defence and the evidence led thereon, I am of the view that the trial Court did not set up for the Respondents, a case different from that pleaded by them. The Respondents adduced evidence of possession, whether after the alleged purchase from the Appellants family as pleaded in paragraph 7 of the Statement of Defence, or from the 1st Respondent, is of no moment. That evidence was adduced without objection from the Appellants. This issue is therefore resolved against the Appellant.
Now, learned counsel for the Appellant on issue one, contended that the learned trial Judge wrongly applied the rule in Kojo v. Bonsie (1957) 1 W.L.R.1223 at 1227.
That the rule postulates that when there are two conflicting traditional histories by parties to a dispute, the Court will have recourse to recent acts of possession. It was then submitted that, in the instant case, the only traditional evidence before the Court is that of the Appellants, as the evidence of traditional history of the 1st Respondent was not pleaded and therefore, it ought not to have been admitted. That, though admitted, it ought not to have been relied on by the trial Court. Referring to the testimony of the 1st Respondent who testified as the DW3, learned counsel submitted that, the entire traditional history given by the 1st Respondent (DW3) was not pleaded and therefore ought not to have been admitted by the Court, even if elicited under Cross-Examination. The cases of Nuhu Yashe v. Mohammed Lawal Umaru (2003) FWLR (pt. 182) 1855 at 1857; Edward Okwejiminor v. G. Gbakeji & Ors (2008) FWLR (pt.409) 405 at 411 was cited in support.
The case of Alfa Mubo & Ors v. Sule Alabi (2008) FWLR (pt.404) 1475 1476 was then cited to urge us to hold that the trial Court ought not to have relied on unpleaded facts of traditional history of the 1st Respondent. That in the circumstances, the only legally admissible evidence of traditional history on the record is that of the Appellants, and therefore the rule in Kojo v. Bonsie (supra) was wrongly applied by the trial Court.
Arguing on issue two (2), learned counsel for the Appellant submitted that, it is trite law that pleadings not supported by evidence are deemed abandoned. That, even though the Respondents pleaded that they will be relying on the defences of laches and acquiescence, the mere pleading of those defences without evidence in support thereof will not suffice. The case of Alhaji Jimoh Odutola v. Caleb Sanija & Ors (2008) FWLR (pt. 400) 1780 at 1781 was cited in support. That, looking at the records, the Respondents neither pleaded facts nor led evidence in support of the defences raised by them, and therefore the defences are deemed abandoned. It was then submitted that, if the Court finds that the defences of acquiescence and laches are deemed abandoned, then the learned trial Judge erred in giving the Respondents a relief they did not seek.
It is also argued by learned counsel for the Appellants, that the learned trial Judge erred when he held that the 2nd Defendant had shown a better title than the Appellants to the land in dispute. That, it is so because, the Respondents did not Counter-Claim for title, moreover when the purchase document was rejected in evidence; and therefore, there was no legally admissible evidence to support the sale coupled with the fact that the evidence of traditional history was not pleaded. Furthermore, that the 2nd Respondent also did not plead nor led evidence of his root of title. We were then urged to hold that the learned trial Judge erred when he held that the 2nd Respondent has proved a better title than the Appellants; and that the defences of acquiescence and laches availed him.
Arguing on issue three, learned counsel for the Appellant referred to the judgment of the trial Court at pages 89 lines 1 5; 10 12, 88 lines 22 26, 90 lines 2 4 and 90 lines 4 10; 33 34, to submit that, it is glaring that the Respondents did not join issues with the Appellants on their traditional history, as the Respondents did not plead any traditional history.
Furthermore, that no issue was joined on the custom applicable to Baaleship in Akinosi Village. Learned Counsel then drew our attention to the testimonies of PW1, PW2 and PW3 to submit that there is no evidence on the record to show that the Appellants admitted that Adenle has land at Akinosi Village as a co-founder with Akinosi. That the Appellants did not also testify that the Adenle and Akinosi families rotate the Baaleship of Akinosi Village nor did they testify that the land in dispute falls within Adenle land or that Ogundimu granted land to other persons in Akinosi. That, the Appellants had maintained that Adenle was a guest of Akinosi and was given the land in that capacity.
It was further argued by learned counsel for the Appellants that, the evidence on the Baaleship of Akinosi was introduced by the 1st Respondent (DW3). It was then submitted that the findings of the learned trial Judge were not borne out of the pleadings and the evidence of the parties,and thus occasioned a miscarriage of justice to the Appellants.
On issue five (5), learned counsel for the Appellants contended that, after rejecting the purchase document tendered by the Respondents, the learned trial Judge still held that there was sufficient other evidence to confirm a valid sale by the 1st Respondent to the 2nd Respondent. That in determining the issue, the learned trial Judge should have first determined the type of sale, whether native law and custom or the English law, they were relying on. That, the requirements of sale under the two types of law differ. The case of Chief Francis Adewale Onafowokan v. Chief Wasiu Shopitan (2009) FWLR (pt. 450) 685 at 688 9 was cited in support. That, the Respondents had pleaded that the 2nd Respondent bought the land in dispute from the head and principal members of the Appellants family and was put in possession in the presence of witnesses, but turned around to give evidence that he bought the land from the 1st Respondent who put him in possession.
Learned Counsel for the Appellant further argued that the record shows clearly that no facts and or evidence of how much was paid by the 2nd Respondent to the 1st Respondent, who were the witnesses who saw the 1st Respondent put the 2nd Respondent in possession. The case of Alhaji Nuhu Yashe v. Mohammed Lawal Umar (supra) was then cited to submit that, there was no other evidence which the trial Court could rely on to hold that there was a valid sale of the land in dispute by the 1st Respondent to the 2nd Respondent. We were accordingly urged to hold that, there was no valid sale of the land in dispute to the 2nd Respondent by the 1st Respondent such as could have entitled the trial Court to hold that the 2nd Respondent proved a better title to the land in dispute than the Appellants.
On issue seven, learned counsel for the Appellant contended that the learned trial Judge wrongly evaluated the evidence presented by both parties in this case. It was then contended that, the learned trial Judge relied on unpleaded facts and drew wrong conclusions from it especially that:
(i) The 1st Respondents mother inherited 4 acres of land from her father when no such evidence was given by any of the witnesses called by the Respondents nor was such fact pleaded by them;
(ii) Akinosi and Adenle together with other persons co-founded Akinosi Village; and
(iii) That the Appellants admitted that Ogundimu granted land to other persons at Akinosi, and also that the Appellants admitted that Adenle family has land at Akinosi Village. Furthermore, that the Baaleship of Akinosi Village is rotated between the Adenle and Akinosi families.
Learned Counsel for the Appellants then submitted that, the evidence of the Appellants was that Ogundimu granted land to other persons in the area (but that Akinosi was not mentioned by the Appellants). That, the pleading and evidence was that, Adenle was a customary tenant of Akinosi,and that it was the 1st Respondent who testified that the Baaleship is rotated between Akinosi and Adenle families. Referring to the testimonies of the PW1 and PW3, learned counsel contended that, it was the Respondents who gave such evidence. Learned Counsel for the Appeallants drew our attention to the testimonies of DW3 and DW5 at pages 52 lines 22 26, 53 line 7; 26 27, 55 lines 18 20 and 56 lines 12 14 and the holding of the learned trial Judge at page 88 lines 22 27 in support.
Learned Counsel for the Appellant went on to submit that the learned trial Judge also relied on unpleaded facts and thereby wrongly drew the following conclusions:
(a) That it is not normal Yoruba custom that a non land owning family would produce a Baale of the area when such custom was never pleaded nor evidence led on such custom by either of the parties.
(b) That the onus is on the Appellants to show that the particular land in dispute fall within their own family portion, when the claim of the Appellant and evidence is that the whole Village belongs to them.
(c) That there is conflict of traditional history when the Respondents did not plead any facts of traditional history.
(d) That the defences of acquiescence and laches avail the 2nd Respondent when the Respondent did not plead any specific facts nor led evidence of those defences.
(e) That there is evidence to confirm a valid sale by the 1st Respondent to the 2nd Respondent when the purchase document sought to be relied on by the Respondents was declared inadmissible; and there were no other facts of the sale pleaded except the admission that the 2nd Respondent first purchased the land from the Appellants family and was put in possession by them.
(f) That the 1st Respondent had proved a better titled to the land in dispute and therefore the 2nd Respondent has a better title to the land in dispute.
Learned Counsel for the Appellant then submitted that the learned trial Judge wrongly held that the Appellants must succeed on the strength of their own case but failed to see that the Respondents case strengthened that of the Appellants having regard to the admissions in paragraphs 7, 11, 15 and 17 of the Statement of Defence. That, if the learned trial Judge had carefully evaluated the evidence, he would have realized that there are no admissible evidence from the Respondents which could tilt the scale of justice in their favour. The cases of Dumez (Nig.) Ltd v. Nwakhoba (2009) FWLR (pt. 461) 842 at 844 and Chief S. D. Yaro v. Arewa Const. Ltd & Ors (2008) All FWLR (pt.400) 603 at 611 were then cited to urge us to re-evaluate the evidence.
Learned Counsel for the Appellant drew our attention to the testimonies of PW1, PW2, PW3, DW3 and DW5, and submitted that any decision of a Court which fails to take into account the entire evidence before it is perverse and would occasion a miscarriage of justice.
The cases of Godwin Nsiege & Anor v. Obinna Mgbemena & Anor (supra) at 1776; and Barrister Ehimwenma Osifo & Anor v. Okogbo Community Bank Ltd (2007) All FWLR (pt. 372) 1803 at 1812 and Emeka Nwana v. F.C.D.A. (2007) 1 NWLR (pt. 1044) 59 at 67 were accordingly cited to urge us to set aside the judgment of the trial Court.
In response, learned counsel for the Respondents contended that, the case of the Appellants is as shown in paragraphs 6, 7, 8 and 9, of the Statement of Claim, while the relevant response of the Respondents is in paragraphs 6 and 8 of the Statement of Defence. That also relevant to the Appellants case are paragraphs 2, 6 and 13 of the Appellants Reply to the Statement of Defence. That, based on the above pleadings, it is not in doubt that the parties had joined issues on whether Akinosi was the sole owner of the vast land now called Baale Akinosi Village or whether families, particularly Adenle family owned part of the land.
Learned Counsel for the Respondents then referred to the testimonies of the Appellant and PW3 to submit that the 1st Appellant who testified as the PW1, claimed in the pleadings and evidence that Akinosi was the only one to whom Ogundimu had granted land but sang a different song under Cross-Examination when he admitted that Adenle also had land in the area. That while the Appellants in their pleadings and evidence-in-chief claimed sole ownership of Baale Akinosi Town through traditional history but contradicted their traditional history under Cross-Examination by admitting that the 1st Respondents ancestor; Adenle was also a land owner in the area. That, it is as a result of those contradictions that the learned trial Judge made the findings in page 88 line 31 89 line 4 of the Record of Appeal. Learned Counsel then submitted that, it is in an attempt to repair the damage made to their case that the Appellants submitted at page 8 paragraph 6.09 of their Brief of Arguments that evidence admitted under Cross-Examination on facts not pleaded is inadmissible. It was then submitted that, since issues were joined on Adenles ownership of the land at Akinosi, the arguments of the Appellants is misplaced.
On the issue of traditional history, learned counsel for the Respondents cited the case of Dagaci of Dere v. Dagaci of Ebwa (2006) All FWLR (pt.306) 786 to submit that, for traditional history to avail a party, the evidence of it must be cogent, compelling and credible. That in the instant case, the Appellants evidence of traditional history is neither incontestable, undeniable or undoubtable. It was then pointed out by learned counsel that the Appellants did not claim any relief of title to land, but only claimed the setting aside of the sale of the land by the 1st Respondent to the 2nd Respondent, damages for trespass by relying on evidence of traditional history. The case of Osuji v. Ekeocha (2009) 39 NSCQR 523 was cited in support, and to further submit that the Appellants failed to lead cogent evidence of traditional history of exclusive ownership of the land in dispute and that the learned trial Judge was right when he dismissed the Appellants claims. We were accordingly urged to resolve the issue against the Appellants and to hold that the evidence of traditional history relied upon by the Appellants did avail them.
In response to the Appellants issue one (1), learned counsel for the Respondents submitted that, the application of the rule in Kojo v. Bonsie (supra) could not have availed the Appellants due to the apparent flow in the evidence of traditional history relied upon by them. Referring to the judgment of the trial Court at page 93 lines 10 20 of the Record of Appeal, learned counsel contended that, it is baffling for the Appellants to submit that the trial Court granted a relief not claimed by the 2nd Respondent. It was then submitted that, the learned trial Judge found and held that the Respondents did not Counter-Claim, so did not make any specific order in their favour.
On issue two (2) formulated by the Appellants, learned counsel for the Respondents submitted that it is incorrect to contend, as done by the Appellants, that the Respondents did not plead facts in support of the defences of acquiescence and laches. It was then contended that the defences were abundantly pleaded in paragraphs 9, 11, 12, 14, 16 and 18 of the Statement of Defence. The case of Abisi v. Ekwealor (1993) 6 NWLR (pt. 302) 643 was then cited to submit that, the defences of acquiescence and laches need not be pleaded in a particular manner so long as the facts constituting the defence are pleaded in such a way as to show clearly that the party pleading relies on the defences. Relying on the definition of acquiescence and laches in Ramsden v. Dyson (1856) LRIAL cited with approval in the case of Cedris Moss v. Kenrow (Nig.) Ltd & Ors (1992) 9 NWLR (pt.264) 207, learned counsel submitted that the Appellants were caught by the doctrine of acquiescence and laches as rightly found by the learned trial Judge.
Now, on issue two formulated by the Respondent (which encompasses arguments in response to issues 5 and 7 distilled by the Respondents), learned counsel for the Respondents contended that the relief claimed by the Appellants is for an order setting aside of the sale of the land in dispute by the 1st Respondent to the 2nd Respondent. That the law as postulated in the case of Abiodun (Bailiff, Ondo) & Ors v. Chief Kogun Adehin (1962) 1 All NLR 550 cited with approval in Ayanboye v. Balogun (1990) 9 10 S.C. is that, in an action to set aside the sale of land, it is postulated thereby that the sale attacked is prima facie valid and would remain valid if not set aside. That such remedy is not appropriate where the claim is that no valid sale had taken place.
It was then submitted that, the proper remedy available for a Claimant seeking to set aside a sale in which he was not a party, is for a declaration of title and damages for trespass against the purchaser. The case of Foko v. Foko (1968) NMLR 441 was cited in support. That in the instant case, the Appellants Clam to set aside the sale between the 1st Respondent and 2nd Respondent cannot avail them in view of the relief sought.
Learned Counsel for the Respondents also referred to paragraphs 28 of the Statement of Claim and 22 of the Reply to the Statement of Defence to submit that, the evidence adduced thereon by the Appellants was to the effect that, the 1st Respondent did not have any land in the area in dispute and therefore could not have had any land to sell to the 2nd Respondent. Learned Counsel then submitted that, the Appellants prayer that the sale is void while also claiming a relief to have such alleged non-existent sale set aside is misconceived and self-defeating, and therefore the Court could not have granted it. The case of Government of Gongola State v. Tukur (1998) 4 NWLR (pt.117) 592 at 603 was cited in support.
It is further submitted by learned counsel for the Respondent that, assuming (but not conceding), that the Appellants were right to seek the relief to set aside the sale, the Appellants failed to act timeously thereby negating any right they could have had for seeking to set aside the sale. That the facts as pleaded in paragraphs 9, 11(b), 12 and 14 of the Statement of Defence and the testimonies of PW5 in Court disclosed that the 2nd Respondent was in effective possession of the land in dispute since 1978. That, the acts of possession adduced by the Respondents include:
(a) Possession of the land in dispute by the 2nd Respondent since 1978;
(b) Erection of fence and buildings on the land by the 2nd Respondent;
(c) The 2nd Respondent surveyed the land in 1987 as evidenced by Exhibit B;
(d) The 2nd Respondent instituted a Court action in respect of the land which lasted for ten (10) years before it was disposed of vide Exhibit C, and
(e) That apart from the case referred to in (d) above, nobody challenged or disturbed the 2nd Respondent on the land in dispute from 1978 till 2003 when the 1st Appellant started laying claim to the land and subsequently instituted this action.
Learned Counsel then submitted that, an essential condition for seeking to have the sale between the 1st Respondent and 2nd Respondent set aside was for the Appellant to act timeously. The case of Adeleke Mogaji & Ors v. Nuga (1960) 5 F.S.C.107 was cited in support, and to further submit that in the instant case, the Appellants waited for twenty-five years (25 years) before acting. We were therefore urged to hold that the Appellants slept over their rights.
In conclusion, learned counsel for the Respondents submitted that, the evidence of title given by the Appellants was roundly rubbished under Cross-Examination, and that the Appellants could not explain why they were asking for only three (3) plots out of 13 from a Stranger (trespasser). That on the contrary, the 1st Respondent gave cogent and clear evidence of the founding of the land and an unbroken chain of succession of ownership and use till the time of sale to the 2nd Respondent. The case of Alimi v. Ayinde (2005) All FWLR (pt. 286) 795 was then cited to submit that, the Appellants were to succeed on the strength of their case and not on the weakness of the defence. We were therefore urged to hold that, the reliefs sought by the Appellants could not be granted as they (Appellants) were unable to prove that they have a better title to the land in dispute.
In reply on points of law, learned counsel for the Appellants argued first of all, that the evidence of PW1 and PW2 are not contradictory as contended by the Respondents counsel. That the Appellants never admitted that Adenle had land in Akinosi as an overlord but as a customary tenant of Akinosi. It was also contended in respect of the Appellants evidence of traditional history that, the Appellants pleaded the genealogical line of succession with the names of successors in paragraphs 6, 7, 8, 9, 10, 11 and 12 of the Statement of Claim and that those averments were established by cogent evidence of the PW1 and PW2.
With respect to the prayer for setting aside of the sale of the land in dispute by the 1st Respondent to the 2nd Respondent, learned counsel submitted that it is erroneous to believe that the 1st Respondent had the right to sell the land in dispute.
It was also submitted that the Appellants pleaded the fact of possession in paragraph 7 of the Statement of Claim, which was supported by the testimonies of PW1 and PW2.
It is the law that, it is the relief(s) claimed by a Plaintiff that determines the cause of action. The reliefs claimed on the other hand are ascertained by averments in the Statement of Claim. See Anambra State Environmental Sanitation Authority & Anor v. Ekwenem (2009) 13 NWLR (pt.1158) 410; Anekwe & Anor v. Nweke (2014) 9 NWLR (pt.1412) 393 and Owuru & Anor v. Adigwu & Anor (2017) LPELR 42763 (SC). In the instant case, the principal or main relief claimed is for an order to set aside the sale by the 1st Respondent to the 2nd Respondent of all that parcel of land lying and situate at Ideko Area of Baale Akinosi Town in Ifo Local Government Area of Ogun State. Reliefs (b) and (c) which are for damages for trespass and Perpetual Injunction are dependent upon the success of the prayer (a) of paragraph 20 of the Statement of Claim.
The Plaintiffs/Appellants predicated the action to set aside the sale of the land in dispute between the 1st Respondent and the 2nd Respondent on the ground that title to the land is in his Akinosi family, i.e. that the Akinosi family are the owners of the land in dispute. The facts of ownership of the land in dispute were pleaded by the Appellants in paragraphs 6, 7, 8 and 9 of the Statement of Claim. It is to be noted that the Appellants were not parties to the sale transaction between the 1st and 2nd Respondents. Generally, based on the principles of privity of contract, the Appellants would lack the legal capacity to seek that the sale transaction between the 1st and 2nd Respondents be set aside. However, there is an exception here. Thus, the law permits a stranger to a contract for sale of land to seek an order to set same aside, if his title to the land is affected by the sale. Thus, in the case of Dilli v. Adamu & Anor (2016) LPELR 40227 (CA), My learned brother, Ekanem, JCA held as follows:
It was contended by 1st Respondents Counsel that the argument that 2nd Respondent as the purchaser was the only person with standing to sue was misconceived on account of the doctrine of privity of contract, to the effect that only a party to a contract has the locus standi to sue,to set aside or enforce the same. The short answer to that is that, a third person or a stranger to a deed or a contract for the sale of land whose title is affected by such a deed or contract could seek an order to set it aside since it affects his title.
It is my view therefore, on the judicial authority cited above, that the Appellants who claimed ownership of title to the land in dispute, had the standing or locus standi to seek that the sale transaction between the 1st Respondent and the 2nd Respondent be set aside. The relief sought however introduces the issue of title to the land in dispute. See also Goldmark (Nig.) Ltd & Ors. v. Ibafon Co. Ltd & Ors (2012) 10 NWLR (pt.1308) 291. This is moreso when the Plaintiffs/Appellants sought relief of damages for trespass and injunction. The Respondents did not merely deny the Appellants Claim but also claimed title to the land in dispute but also claimed damages for trespass and injunction. It is the law that, where there is a claim of title coupled with that of damages for trespass and injunction, title to the land is put in issue.
Thus, to succeed, the Plaintiff must establish by credible evidence that he has a better title. It should be noted that claim for damages for trespass coupled with a claim for an injunction will not always put the title to the land in dispute. The issue of title will only arise where the Defendant has put the issue of title in issue by claiming to have the title or the right to title to the land in dispute. See Ufomba & Anor v. Ahuchaogu & Ors (2003) 4 S.C. (pt.II) 65; Omotayo v. Co-Operative Supply Association (2010) 16 NWLR (pt. 1218) 1 and Ajibulu v. Ajayi (2014) 2 NWLR (pt. 1392) 483. Thus, where the issue has been determined in a previous case between the parties, or the Defendant does not dispute the Plaintiffs title, the issue of title will not arise. In Ufomba & Anor v. Ahuchaogu (supra), Edozie, JSC said:
It is settled law that where a Plaintiff claims damages to trespass and injunction and the Defendants alleges that the land belongs to him, the Plaintiff in order to succeed has to prove not only that he was in possession of the land when the trespass was committed on it but also that his own title to the land in dispute is better than that of the Defendant. This is because, in the circumstances title to the land in dispute is put in issue.
By putting title to the land in issue, the onus is therefore placed on the Plaintiff or Claimant to prove his ownership and or exclusive possession. To prove title, the Plaintiff has to adduce credible and cogent evidence which will satisfy and convince the Court that he, and not the Defendant has exclusive title or ownership of the land.
To succeed in proving title, the Plaintiff must rely on the strength of his own case, and not on any perceived weakness of the Defence, save where such weakness of the Defence supports the Plaintiffs Claim. In such a circumstance, the Plaintiff may rely on it in order to strengthen his case. See Orianzi v. A.G, Rivers State (2017) LPELR 41737 (SC); Nruamah & Ors v. Ebuzoeme & Ors (2013) 13 NWLR (pt.1372) 474; Idesoh & Anor v. Ordia & Ors (1997) 3 NWLR (pt. 491) 17 and Okoye & Ors v. Nwankwo (2014) 15 NWLR (pt. 1429) 93. Thus, in Idesoh & Anor v. Ordia & Ors (supra), Adio, JSC. said
The burden is on the party, who is claiming that a parcel of land belongs to him, to satisfy the Court that he is entitled, on the evidence brought by him, to a declaration that the land belongs to him. He has to rely on the strength of his own case and not on the weakness of the case of the Defendant. If the burden is not discharged, the weakness of the Defendants case will not help the Plaintiff and the proper judgment is for the Defendant
It is also the settled law, that a Defendant who has not Counter-Claimed has no burden to prove anything. In such a situation, the only burden on the Defendant is to adduce evidence which controverts the evidence of the Plaintiff so as to show that the Plaintiffs Claim is not true or that the evidence adduced by the Plaintiff is not credible or not sufficient to entitle the Plaintiff to the declaration sought. Thus, in the case of Nruamah & Ors v. Ebuzoeme (supra), Ariwoola, JSC said:
There is no doubt, that in any claim for declaration of title, where the Defendant does not file a Counter-Claim, the burden is heavier on the Claimant to prove his title to land in dispute. The Defendant certainly has no duty to prove his title to the same land in dispute It therefore follows that, where evidence has been led by both parties, the duty of the Court is to evaluate or appraise the evidence by putting the evidence of the parties on the opposing side of the imaginary scale of justice. Whichever side is heavier by tilting the scale to balance in his favour, will have the judgment of the Court. Thus, in Wachukwu & Anor v. Owunwanne & Anor (2011) 14 NWLR (pt. 1266) 1, Muhammad, JSC, said:
Now, the age long established principle of law in relation to burden of proof on a Plaintiff seeking a declaration of title to land is for him to establish his case on preponderance of evidence by setting up a prima facie case whereupon the trial Court examines the evidence put forward by both parties and weigh same on the imaginary scale with a view to making a finding as to which side preponderates
The standard of proof to be discharged is therefore that upon preponderance of evidence or balance of probabilities.
The Plaintiff may predicate his claim of title to land by any of the five recognized ways of claiming title to land in Nigeria.
One of such mode of claiming title to land in Nigeria, is by traditional history. Traditional history or evidence, is evidence as to rights over land alleged to have existed beyond the time of living memory. Such evidence exists in ancient history. Traditional history is therefore admissible hearsay by virtue of Section 66 of the Evidence Act, 2011 which provides that:
Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is admissible.
Now, it is the settled law that, where a Plaintiff relies on evidence of traditional history to establish his claim of title to land he has to lead concrete, cogent and credible evidence which will convince the Court that he is entitled to the declaration sought. In that respect, the Plaintiff must specifically plead and adduce credible evidence to establish the following:
(a) Who founded the land;
(b) How the land was founded; and
(c) The names of his ancestors from whom the land devolved up to the last successor(s) who is or are living persons.
In other words, the Plaintiff must plead and lead evidence on the facts constituting the founding of the land and the chain of succession from the original founder down to the existing successor or successors without leaving any gaps or creating embarrassing break in the devolution which are difficult to explain. See Akanbi v. Salawu & Anor (2003) 13 NWLR (pt. 838) 637; Okuleye v. Adesanya & Anor (2014) 12 NWLR (pt. 1422) 521; Sapo & Anor v. Sunmonu (2010) 11 NWLR (pt. 1205) 374 and Faleye & Ors v. Dada & Ors (2016) LPELR 40297 (SC). It therefore means that to prove the facts pleaded, the Plaintiff must adduce credible and uncontradicted evidence to prove the facts of traditional history.
In the instant case, the Plaintiffs/Appellants pleaded the facts of traditional history in paragraphs 6, 7, 8, 9, 10, 11 and 12 of the Statement of Claim as follows:
6. The Plaintiffs, family, Akinosi, is the owner of the area known as Akinosi Village now a Town. This area covers a large expanse of land including the area called Ideko.
7. The Plaintiffs aver that their family has been in possession of this vast expanse of land known as Baale Akinosi Town over a hundred years ago.
8. The Plaintiffs aver that the expanse of land was granted to their forefather Akinosi by Ogundimu.
9. The Plaintiffs aver that when the land was granted, their forefather was given authority to name the village after himself, hence the name Baale Akinosi Village.
10. The Plaintiffs aver that Akinosi settled on the land and begat Oladipupo.
11. Oladipupo begat seven (7) children namely; Akinwande, Akintunde, Akinwale, Omolayajo (a daughter), Adebayo, Folarin and Folaranmi.
12. The first Plaintiff is the son of Folaranmi while the second Plaintiff is a grandson of Omolayajo- the only daughter of Oladipupo.
In response to the above pleaded facts, the Defendants/Respondents pleaded in paragraphs 4 and 6 of the Statement of Defence as follows:
4. In answer to paragraph 1 of the Statement of Claim, the Defendants aver that Akinosi was one of the many founders of and settlers on Akinosi Village, others include Adenle, Sowunmi, Idowu Olotun, etc. the 1st Plaintiff only become Baale of Akinosi Village about 7 years ago, long after the 2nd Defendant has (sic) purchased and developed the land in dispute.
6. In answer to paragraphs 6 & 7 of the Statement of Claim, the Defendants aver that Akinosi was only one of those who owned and founded the village known as Akinosi Village today, other co-founders and land owners were Adenle, Sowunmi, Idowu Olotun, etc, all of whom their descendants today exercise control over their respective portions of the land constituting the area now known as Akinosi Village or Town.
In reply to the above cited pleadings of the Respondents, the Appellants pleaded in paragraphs, 2, 6, 7, 8, 9, 10 and 13 of the Reply to the Statement of Defence as follows:
2. The Plaintiffs in answer to paragraph 4 of the Statement of Defence, aver that it is not true that Adenle, Idowu Olowo-Otun (not Idowu Otun) and Sowunmi joined the Plaintiffs, progenitor to found Akinosi Village, rather Adenle came to join Akinosi on the land long after the latter has settled on the land
6. The Plaintiffs aver that their forefathers alone were in control of the vast land of Baale Akinosi which included the land in dispute. In fact, the disputed area was given to the 1st Plaintiffs father to be farming upon.
7. The land was granted solely to Akinosi the great grand-father of the Plaintiffs by Ogundimu Akeresebi Erin Omolomo family of Ota over a hundred years ago, whose progenitor Osho-Ogun, a hunter, first settled on the land.
8. Osho-Ogun begat Omolomo (female) who in turn begat Ogundimu Ilupokiki and Aganran.
9. Ogundimu being the eldest of the children of Omolomo held the land for himself and on behalf of his brothers hence the family became known as Ogundimu Akeresebi-Erin Omolomo family.
10. Ogundimu with the knowledge and consent of his brothers granted land to several people including the Plaintiffs forefather.
13. The Plaintiffs aver that the facts stated in paragraphs 8 has nothing to do with Akinosi family as Adenle family has no claim over the land of Baale Akinosi.
The parties gave evidence at the trial in line with their respective pleadings. Specifically, the PW2 stated that he is a member of Ogundimu Akeresebi-Erin Omolomo family and that it was Ogundimu who granted the land to the Appellants ancestor. In the evaluation of the evidence adduced by the parties, the learned trial Judge found, rightly too, that the Plaintiffs relied on traditional evidence to claim title to the land in dispute.
After, further evaluating or appraising the evidence by the respective parties, the learned trial Judge resorted to the principle established in Kojo II V Bonsie (supra) to found in favour of the Respondents. This is what the learned trial Judge said at page 89 line 35 90 line 5 of the Record of Appeal:
Again, the law is that where evidence of traditional history adduced by both parties is conflicting, the issue of title will be resolved by recourse to recent events: KOJO II V BONSIE (1957) 1 WLR 1223, AGEDEGUDU V. AJENIFUJA (1963) 1 SCNLR 205; EGBARAN V. AKPOTOR (1997) 7 NWLR (pt. 514) p. 559. There is a clear conflict between the evidence of the Plaintiffs and that of the 1st Defendant as to who first settled upon and/or owns the subject land in dispute, thus the need to examine recent events concerning the land.”
Now, the principle of law established in the case of Kojo II v. Bonsie (supra), is to the effect where there is conflict between the traditional histories given by one side and the traditional history given by the other side, such that the Court is unable to choose between the traditional histories given by the two parties, the Court will resort to acts of recent possession exercised by the parties in order to ascertain which traditional history is the truth. The rule only applies where the Court is unable to decide which of the two histories is more probable by testing it against the evidence adduced by either side. See Are & Anor v. Ipaye & Ors (1990) 2 NWLR (pt. 132) 298; Eboade & Anor v. Atomesin & Anor (1997) 5 NWLR (pt. 506) 490; Okonji & Ors v. Njokanma & Ors (1999) 14 NWLR (pt. 638) 250; Taiwo & Ors v. Ogundele & Ors (2012) 15 NWLR (pt. 1322) 57 and Eyo v. Onuoha & Anor (2011) 11 NWLR (pt. 1257) 1. Thus in Iheanacho & Ors v. Chigere & Ors (2004) 17 NWLR (pt. 901) 130, the Supreme Court, per Onu, J.S.C. said:
The rule in Kojo v. Bonsie (1957) 1 WLR 122 at 126 is that: where parties rely on traditional history in proof of their title and the evidence of traditional history is conflicting or is inconclusive, the rule is to be applied to the case by making reference to facts in recent history to resolve the issue This rule is usually applied in land cases where acts of ownership exercised within living memory is used as litmus test in verification of evidence of traditional history.
Similarly, Rhodes-Vivour, JSC in the case of Odunukure v. Ofomata & Anor (2010) 18 NWLR (pt. 1225) 404 said:
Kojo II v Bonsie and Anor 1957 1 WLR p. 1223 is only applicable where traditional history relied on by the parties is inconclusive to establish the Plaintiffs title, then such traditional history must be tested by reference to the facts in recent years established by evidence. It is only then that the Court can see which of the two competing histories is more probable.
The Learned trial Judge had found at page 90 lines 2 5 of the Record of Appeal, that there is clear conflict between the evidence of the Plaintiffs (Appellants) as to who first settled on the land in dispute. That the conflict was to be resolved by examining acts in recent years concerning the land. That was after the trial Court had resolved at pages 88 89 if the Record (pages 8 9 of the judgment), that the evidence of the Plaintiff/Appellants that Akinosi founded the land cannot be true.
This is what the learned trial Judge said:
Weighing the evidence of both sides especially on the issue of who founded Akinosi Village which has become an important sub-issue, it seems to me that the evidence of the Plaintiffs to the effect that Akinosi founded and owned the whole land at Akinosi cannot be and is not true. What seems to me more probable from the evidence, is that both Akinosi, Adenle and indeed, other families co-founded and had land at Akinosi Village, as it is most unlikely and is not normal Yoruba custom that a non-land owing family would produce the Baale of a Village or turn where his family had no land, over the sole – owner
The learned trial Judge had, after considering the evidence of traditional history from both sides, concluded that the traditional history of the Respondents is more probable. The learned trial Judge disbelieved the case of the Appellants that Akinosi founded and owned the entire Akinosi Village because; the PW1 admitted in Cross-Examination that apart from Akinosi, Ogundimu also granted land to other persons at Akinosi. Furthermore, that the PW1 also admitted that Baaleship of Akinosi Village is rotated between Adenle and Akinosi families and that the immediate past Baale was the father of the 1st Respondent (PW1).
The learned trial Judge had also stated the law correctly, that the onus was on the Appellants and not the Respondents who did not Counter-Claim, to show that the particular land in dispute falls within their own family. It is my view that, having found that the evidence of the Appellants as to the founding of Akinosi Village is not true, it would mean that the learned trial Judge preferred the evidence of the Respondents to that of the Appellants. In that respect, I am of the view that, that finding should have been conclusive of the issue. The need to resort to the rule in Kojo v. Bonsie (supra) would then not have risen at all. Our duty at this stage, is to find out from the printed Record, whether the finding of the trial Court on the evidence of traditional history led by the parties is correct in law.
Now, I had earlier reproduced the pleadings of the parties on their root of title to the land. I have also considered the evidence led by the parties thereon. It is my finding that the pleadings and evidence on the root of title of the Appellants satisfies the requirements of prove of title through traditional history. The Appellants had pleaded clearly and unambiguously the root of their title from the original owner Ogundimu to Adenle down the line of succession to the Appellants. Such evidence was never contradicted in Cross-Examination. The only issue that was controverted by the Respondents is the Claim of the Appellants that Akinosi was the sole founder and owner of all land in Akinosi Village. This came about when PW1 (1st Appellant) admitted under Cross-Examination that, in addition to Akinosi, Ogundimu granted land to many other persons in the area. PW1 also conceded that Ogundimu granted land to Adenle, when he stated under Cross-Examination at page 42 lines 13 15 of the Record of Appeal as follows:
In addition to Akinosi, it is true that Ogundimu granted land to many individuals in that area. The land in dispute is not part of the one granted by Ogundimu to Adenle.
The PW2 could neither deny nor deny whether Ogundimu granted land to Adenle and others, apart from Akinosi. The PW3 who is a member of Akinosi family gave clear evidence of the root of title of the Appellants family to the land in dispute. She also admitted that Adenle family have their own land at Baale Akinosi Village but that it is not the land in dispute.
Now, the DW3 (1st Defendant) tried to give evidence on the root of title of the Adenle family to the land in dispute. However, the said root of title of the 1st Respondent was never pleaded. The only reference to the root of title of the 1st Respondent is in paragraphs 4 and 6 of the Statement of Claim. Therein, the Respondents only pleaded that Akinosi was only one of the founders of Akinosi Village and that other persons, including Adenle co-founded Akinosi Village and have their own parcels of land in the area now known as Akinosi Village. There is no pleading linking the 1st Respondent to Adenle. In other words, there is no fact pleaded to show how the land founded by Adenle came to be owned by the 1st Respondent. Indeed nowhere was it pleaded on how Adenle founded the land, i.e, was it through first settlement, conquest, grant, purchase or gift. No fact was also pleaded by the Respondents on the particulars of the intervening owners from Adenle down to the 1st Respondent.
In that respect, the oral evidence given by the DW3 as to the root of title of the 1st Respondent is inadmissible. This is because it is settled law that evidence given on facts that are not pleaded would go to no issue. Where it is inadvertently admitted, it should be discountenanced.
Having discountenanced the oral evidence given by PW1 and PW3 on the root of title of the 1st Respondent, the case of the Respondent is bereft of any evidence of the root of title of the 1st Respondent through whom the 2nd and 3rd Respondents derive title through purchase. This is so because, the 1st Respondent had a duty to prove that he had valid title which he could transfer to the 2nd Respondent. To do that, the root of title of the 1st Respondent must be pleaded and evidence led thereon. In other words, the Respondent had a duty to plead and trace the root of title of the 1st Respondent. See Ashiru v. Olukoya (2006) 11 NWLR (pt. 990) 1 where the Supreme Court, per Onnoghen, JSC (as he then was) said:
Where title of the Grantor is in issue,.. it is the duty of the Claimant to go further to not only plead and trace the root of title of the grantor or vendor but prove same on the balance of probability. Where the Claimant fails to discharge this onus, his claim must fail.
In the instant case, the case of the Respondents was devoid of any pleading on the root of title of the 1st Respondent who sold the land in dispute to the 2nd Respondent. See also Daniel-Kalio v. Daniel Kalio (2005) 4 NWLR (pt. 915) 305; Ajibulu v. Ajayi (2004) 11 NWLR (pt. 885) 458 and Owhonda v. Ekpechi (2003) 17 NWLR (pt. 849) 326.
Having thus found, it would mean that the only evidence of traditional history validly on record is that of the Appellant. The Respondents not having pleaded and traced the root of title of the 1st Respondent, there is no other evidence of traditional history from the Respondents on which to gauge the truth or otherwise of traditional history pleaded and given by the Appellant. In that case, there was nothing else which conflicted with the traditional evidence led by the Appellants, which could necessitate the application of the rule in Kojo v. Bonsie (supra). It would also mean that the traditional history led by the Appellant remain unchallenged and/or uncontroverted.
It is my view therefore, that the learned trial Judge erred when he held that the Appellants did not prove a better title than the Respondents, or that they are true owners of the land in dispute. Contrary to the findings of the learned trial Judge, it is again my view, which I hold, that the Appellants were able to prove that they have a better title to the land than the Respondents in view of the unchallenged and uncontradicted traditional history placed before the Court.
It seems to me that the learned trial Judge was overwhelmed by the evidence that, succession to the Baaleship Stool of Akinosi is on a rotational basis and that the father to the 1st Respondent was the immediate predecessor of the 1st Appellant as the Baale of Akinosi Village. The learned trial Judge was also taken in by the admission of the Appellants that Adenle also owned land in Akinosi Village. It should be noted that the issue of right to ascend a chieftaincy issue is definitely a different issue from that of ownership of land. On the issue of ownership of land in Akinosi Village, what should have occupied the mind of the learned trial Judge, was the determination of who, between the Appellants and the Respondents was able to prove better title to the particular land in dispute which is evidenced by Exhibit A. The issue to be determined is not about the ownership of the Akinosi Village but the land in dispute covered by Exhibit A, since there is evidence that the Appellants and the 1st Respondent own land in the Akinosi Village area.
Now, after holding that the 2nd Respondent had shown a better title to the land in dispute, the learned trial went to also hold, in the alternative that:
In the event that I am wrong that the Plaintiffs have not shown a better title, then from the facts I am convinced and I hold that the defences of laches and Acquiescence will avail the 2nd Defendant to defeat the claims of the Plaintiffs.
Learned Counsel for the Appellant had argued that the Respondents neither pleaded the defences of acquiescence and laches specifically nor facts pleaded which the Court could infer the defences. In holding that acquiescence and laches avail the 2nd Respondent did not state the facts which constitute the defences. The Respondents had responded that the defences of acquiescence and laches were pleaded in paragraph 18 of the Statement of Defence, where it was pleaded that:
18. The Defendants would rely on laches, acquiescence by standing by e.t.c at the trial.
That, the Respondent had exercised various acts of ownership over the parcel of land in dispute but the Appellants stood by and did nothing for about 25 years before suddenly waking up to institute this action.
It should be noted that, there is a distinction between the defences of laches and acquiescence. Thus, a person who asserts laches as a defence is contending in essence that, the opposing party has slept over his rights and as a result, that other party no longer has the right to claim his right over the land in dispute. That being so, a party who fails to act timeously will suffer the effect of his claim being barred. Acquiescence on the other hand requires that the conduct of the adverse party is such that the Claimant can infer that the other party agreed to certain state of affairs affecting his legal rights over the land in dispute, such that he may be estopped to make further claims as to his rights over the land.
See Kachudulen v. Banki & Ors (2001) FWLR (pt.73) 1; Kaiyaoja & Ors v. Egunla (1974) All N.L.R. 913 and Fagbemi v. Aluko (1968) LPELR 25454 (SC). My Lord. Okoro, J.S.C. explained the principles governing the application of the defences of acquiescence and laches in the case of Isaac v. Imasuen (2016) LPELR 26066 (SC) as follows:
The principle governing the defence of laches and acquiescence has been judicially explained in a long line of cases. In an old case of Ramsden v. Dyson L.R. IHL. 129, 140 141 which was cited in A.G. to the Prince of Wales v. Collon (1916) 2 K.B. 203, Lord Cranworth explained as follows:
If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstain from setting him right and leave him to preserver in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expanded money on the supposition that the land was his own. It considers that, when I saw the Mistake into which he had fallen, it was my duty to be active and to state my adverse title, and that it would be dishonest in me to remain willfully passive on such occasion, in order afterwards to profit by mistake which I might have prevented. But it will be observed that to raise such equity, two things are required: first, that the person expending the money supposes himself to be building on his own land, and secondly, that the real owner at the time of the expenditure knows that the land belongs to himself and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There will be nothing in my conduct, active or passive, making it inequitable in me to assert my legal rights.
The above dictum of My Lord, Okoro, JSC, comprehensively explains the whole essence of the defences of laches and acquiescence. See also, Dadi v. Garba (1995) 8 NWLR (pt. 411) 12; Kaiyaoja v. Egunla (supra) and Adisa v. Ladokun (1973) All N.L.R.679.
In the instant case, the Respondents gave evidence of the following facts, which they constitute the elements of laches and acquiescence against the Appellants, and in their favour:
(a) That the 2nd Respondent has been in possession of the land in dispute since 1978 and had exercised various acts of ownership over the land, such as erecting buildings on the land in dispute.
(b) That the 2nd Respondent surveyed the land in 1987 and again during the pendency of the suit in Exhibit (C).
(c) That the 2nd Respondent instituted an action against the Grail Movement of Nigeria which subsisted for 10 years (1991 2001) vide Exhibit C.
It was then contended that in all those years when the 2nd Respondent was exercising such right of ownership, no one challenged or disturbed him, till the year 2003 when the Appellants instituted this action. The Respondents had pleaded that, apart from fencing and building houses on the land, the 2nd Respondent had built a bakery on the land. See paragraphs 11, 12, 13, 14, and 16 of the Statement of Defence and the testimonies of DW3 and DW5.
The Appellants denied that they were guilty of any delay (laches) and acquiescence in exerting their rights over the land in dispute. Indeed, the 2nd Respondent had sued the one Mudashiru Kokumo Kafaru and the Registered
Trustees of the Grail Movement of Nigeria in HCT/116/91 which suit was struck out on the 10/01/2001. The Appellants were aware of that suit as they so pleaded in paragraphs 14, 15 and 21 of the Reply to the Statement of Defence. The Appellants therefore, in my view, were aware of the interest of the 2nd Respondent when Suit No. HCT/116/91 was instituted. Indeed they pleaded in paragraph 21 that they participated in the settlement between the Grail Movement. The Appellants also conceded the substantial part of the land to the 2nd Respondent while agreeing to take only three (3) plots out of the 12 or 13 plots subject of this dispute. On that score, I agree with the learned trial Judge that the Appellants are estopped from laying claim to the entire parcel of land consisting of thirteen (13) plots. From 1978 to 2003 when the Appellants instituted this action they failed to exercise their rights of ownership over the land in dispute. By their conduct, it is apparent that the Appellants are guilty of acquiescence and laches over the acts of ownership which the 2nd Respondent exercised on the land on the assumption that they have a valid title to the land in dispute.
Having held as above, I hereby hold that the relief sought by the Appellants to set aside the sale by the 1st Respondent to the 2nd Respondent of the land in dispute cannot be granted. The Appellants failed to act timeously to assert their rights over the land in dispute.
On the whole therefore, with the resolution of issue one (1) formulated by the Appellants in their favour, the decision of the trial Court on the issue of title to the land is hereby set aside. The Appellants were, in my view, able to establish their title to the land in dispute through evidence of traditional history. However, the Appellants having been found to be guilty of acquiescence and laches, their relief to set aside the sale transaction between the 1st and 2nd Respondents cannot be granted. On that note therefore, the judgment of the Court below refusing the reliefs sought by the Appellants is hereby affirmed. The parties are to bear their costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA.
I agree with his reasoning and conclusions. Although the Appellants were able to establish their title to the land in dispute through evidence of traditional history, the Respondents successfully relied on the defence of laches and acquiescence. Kekere-Ekun JSC in ISAAC V IMASUEN (2016) LPELR-2 6066(SC) @ 15-16 E-A held thus:
The law is that a defence of laches and acquiescence must be specifically pleaded and proved. Full facts and particulars must be pleaded. See Adeniran v. Alao (2001) 12 SCW 337. The person rely/rig on the defence must plead that the respondent fraudulently, knowingly and deliberately stood by while he changed his position. See: Ezekwesill v. Agbapuonwu (2003) 9 NWLR (Pt.825) 337 @ 381.
In MOSS V. KENROW (NIG) LTD (1992) 11-12 SCNJ (PT. I) PAGE 71, the Defendant pleaded thus:
5. The 1 Defendant avers that the Plaintiffs are guilty of laches, acquiescence and of standing by when the Suit No. M/207/66 was fought by the Administrator – General and Public Trustee of the Lagos State for the Management by the 4th and 5th Defendants.
8. The Defendant avers that the Plaintiffs are guilty of laches and that the 1st Defendant shall relyon all equitable defences at the trial of this case.”
relied upon by the Appellant in support of the defence of aches and acquiescence were inadequate and cannot avail the Appellant as more particulars were needed to sustain those defences. In the instant appeal, the Respondents discharged the burden of pleading and leading evidence of the acts of the Appellant which amounted to laches and acquiescence. These were fully dealt with in the lead Judgment. I agree that the appeal lacks merit. I also affirm the judgment of the lower Court and abide by the order as to costs in the lead judgment.
NONYEREM OKORONKWO, J.C.A.: I have had a preview of the draft of the judgment in this appeal delivered by my Lord Haruna Simon Tsammani JCA.
I agree with the reasoning and conclusions reached. I have nothing more to add.
Appearances:
Appellants are absentFor Appellant(s)
Kayode Oshiyemi; Esq.- for
Respondents.For Respondent(s)
