ABIODUN AGBETU & ANOR V. CHIEF LAWSON AKINBOYO & ANOR
(2012)LCN/5637(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of November, 2012
CA/B/200/06
RATIO
LAND LAW: METHODS OF ESTABLISHING TITLE TO LAND
The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
EVIDENCE: REQUIREMENT FOR AN ADMISSION AGAINST INTEREST TO BE VALID IN FAVOUR OF AN ADVERSE PARTY
It has been held that for an admission against interest to be valid in favour of an adverse party, it must not only vindicate or reflect the material evidence before the court, it must also reflect the legal position. Niki Tobi, JSC in: Odutola Vs Papersack Nig. Ltd. (2006) 11- 12 SC 50 at 75 – 76 held thus:
“Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purpose as superfluous and a court of law is entitled not to assign any probative value to it.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
LAND LAW: POSITION OF THE LAW ON ACTS OF OWNERSHIP AND/OR LONG POSSESSION
The position of the law is that acts of ownership and/or long possession are merely incidental to the title, if proved. In other words, once the radical title has been pleaded and proved, acts of ownership or possession resulting from such title need no longer be considered for they are non-issues. So held the Supreme Court in Eboade vs Atomesin (1997) 5 SCNJ 13 at page 22 lines 3 – 6. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
PROCEDURE: WHETHER FINAL ADDRESSES AMOUNT TO EVIDENCE
This is so because final addresses, no matter how brilliant or alluring, cannot form or be valued as evidence nor can they supplant the status of evidence in the proceedings, Olufosoye v Fakorede (1993) 1 NWLR (pt 272) 747, 746; Nwadairo v SPDC (1990) 5 NWLR (pt 150) 322,339; Odebeko v Fowler [1993] 1 NWLR (pt 308) 637; Ishola v Ajiboye (1998) 1 NWLR (pt 532) 71, 93; Aro v Aro (2000) 14 WRN 51, 65. PER CHIMA CENTUS NWEZE, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. ABIODUN AGBETU
2. MR. IJOPIN AGBETU
(For themselves and on behalf of Liliken family) – Appellant(s)
AND
1. CHIEF LAWSON AKINBOYO
2. CHIEF J. A. ENIAGBOJULE
(For themselves and on behalf of Odofin-Ofilo family) – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Ondo state, sitting at Okitipupa delivered on 16/11/2005 wherein the court granted all the plaintiffs’/respondents’ claims for declaration of title, damages and injunction and dismissed the defendants’/appellants’ counter claim.
Being dissatisfied with the decision, the appellants filed a notice of appeal containing two grounds of appeal. With leave of this court they subsequently filed an amended notice of appeal containing six grounds of appeal. Both parties duly filed and exchanged briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 20/9/2012, ADEMOLA ADEYEMO ESQ., learned counsel for the appellants adopted and relied on the appellants’ brief dated and filed on 11/7/2007. It was deemed properly filed on 16/6/2010. He also adopted and relied on the reply brief dated 18/4/2011 but deemed filed on 19/4/2011. He urged the court to allow the appeal. S. ISUMEDE ESQ., learned counsel for the respondents adopted and relied on the respondents’ brief dated 6/8/10 but deemed filed on 11/4/2011. He drew the court’s attention to a preliminary objection filed on behalf of the respondents challenging the appellants’ reply brief for being incompetent on the ground that the said reply raises new issues and re-argues issues already canvassed in the appellants’ main brief. He urged the court to discountenance the reply brief and dismiss the appeal.
The appellant raised the following issues for the determination of this appeal:
1. Whether the learned trial Judge’s refusal to grant an adjournment on the 4th day of October 2005 to enable counsel to the parties to deliver their final addresses before delivering judgment complies with Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria. (Ground 2).
2. Whether the pieces of traditional evidence of the plaintiffs/respondents are cogent enough to support the decision of the learned trial Judge that the plaintiffs/respondents
(a) proved a better title;
(b) are the ones in possession of the land in dispute; and
(c) are therefore entitled to the reliefs sought in their claim, (Grounds 3, 5 & 6).
3. whether the learned trial Judge properly applied the rule in Kojo II vs Bonsie (1957) W.L.R. 1223 to the instant case. (Ground 4).
On their part, the respondents formulated two issues for determination thus:
1. Whether Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria could be invoked as to annul or void the judgment of the trial court.
2. Whether, having regard to the totality of oral and documentary evidence, the trial Judge rightly entered judgment in favour of the respondents.
Having carefully examined the issues formulated by both parties, I am of the view that the two issues formulated by the respondents cover all the issues in contention in this appeal and are adequate to dispose of same. The appeal shall therefore be determined on the two issues formulated by the respondents.
Before going into the merits of the appeal it is necessary to briefly state the facts that gave rise to the appeal, By their 3rd amended statement of claim dated 20/3/2003, the respondents herein as plaintiffs suing for themselves and on behalf of the Odofin Ofilo family, sought the following reliefs against the appellants as defendants (for themselves and on behalf of the Liliken family):
1. A declaration that the plaintiffs are entitled to the grant of statutory Right of occupancy in respect of that piece or parcel of land situate, lying and being at Agirifon, Ilutitun Osoro, Okitipupa Local Government Ondo state which said land is verged RED in survey plan no. OD/0236/2003/001 dated prepared by Femi Falade, licensed surveyor and attached to the 3rd amended statement of claim.
2. N50, 000.00 general damages for trespass.
3. Perpetual Injunction restraining the defendants, their servants, agents and privies from further entry and trespass on the said land.
In reaction to the claim the defendants filed a further amended statement of defence and in addition filed a counter claim seeking the following reliefs:
1. A DECLARATION that the land in dispute situate, lying and being at Agirifon/Moribodo belongs from time immemorial to the Liliken family of Agirifon, and that they are entitled to be granted Statutory Right of Occupancy over the said land.
2. PERPETUAL INJUNCTION restraining the plaintiffs, by themselves, their agents, servants, privies or grantees or otherwise howsoever from disturbing the counter-claimants lawful and peaceful possession and enjoyment of the land, the subject matter of this action.
3. PERPETUAL INJUNCTION restraining the plaintiffs and their privies to this counter claim from alienating any part portion of the land to third parties.
4. Further and other reliefs.
The plaintiffs filed a reply to the statement of defence and defence to the counter claim.
This case was originally heard and determined by the court below coram S.A. Ajayi, J (retired). An appeal to this court against the judgment delivered was successful. The Court of Appeal by its judgment delivered on 4/7/97 remitted the case back to the High Court for trial de novo before a Judge other than Ajayi, J. The court ordered accelerated hearing of the suit.
The facts of the case as can be gleaned from the record of proceedings and the briefs of the respective parties is that the respondents claimed that their ancestor, one Omojuwa migrated from Ile-Ife more than 600 years ago and after moving to several places eventually settled at a place called Moribodo otherwise known as Ode-Osoro. Omojuwa had three children: Jagbedo, Monogbe and Jibulu.
According to the plaintiffs, Jibulu had four children, namely Ehinmoronren, Odofin-Ofilo, Seja and Lubokun, The plaintiff traced their ancestry through Odofin-Ofilo.
Jibulu’s children left Moribodo and settled at various camps. Odofin-Ofilo lived at Agirifon with his descendants. According to the plaintiffs, while living at Agirifon, some members of the defendants’ Liliken family approached the Odofin-Ofilo family and requested parcels of land to build residential houses. Their request was granted and they were restricted to constructing residential buildings only. They were not permitted to farm on the land or alienate it. It was the plaintiffs’ case that contrary to the conditions for the grant the defendants went on the plaintiffs’ farmland, bulldozed it and destroyed numerous economic crops thereon. This led to the institution of the suit.
The defendants on the other hand pleaded that Omojuwa was also their ancestor but that his son, Jibulu had three children, Ehinmoronren, Seja and Lubokun, and not four as contended by the plaintiffs. They traced their ancestry through Lubokun who begat Liliken Omojuwara who in turn begat Onisile-Liliken.
According to them it was their ancestor, Liliken Omojuwara who brought the Liliken family to settle at Agirifon quarters in Ilutitun, the land in dispute in 1920, and had remained undisturbed on the land.
Both parties called witnesses. The plaintiffs (respondents herein) tendered two exhibits. At the conclusion of the defendants’ case, the matter was adjourned for the address of counsel. On the adjourned date, learned counsel for the appellants requested an adjournment. For reasons that would be expatiated upon in the course of the judgment, the learned trial Judge refused the application for adjournment, dispensed with the final addresses of both counsel and adjourned for judgment. In a considered judgment delivered on 16/11/2005 His Lordship granted the respondents’ claims and dismissed the appellants’ counter claim. The appellants were dissatisfied with the decision, hence this appeal.
Issue 1
The first issue for determination in this appeal is whether Section 294 (1) of the 1999 Constitution could be invoked to annul or void the judgment of the trial court.
In support of this issue learned counsel for the appellants argued that the refusal of the learned trial Judge to grant an adjournment to enable learned counsel address the court was in violation of Section 294 (1) of the 1999 Constitution. While conceding that the grant or refusal of an application for an adjournment is at the courts discretion, learned counsel submitted that such discretion must be exercised judicially and judiciously and must be based on correct rules and principles of law.
He cited several authorities in support of this submission. Relying on Section 294 (1) of the Constitution and several authorities, including Esheneke Vs Gbinije (2005) ALL FWLR (289) 1270 at 1292: Obodo Vs Olomu (1987) 3 NWLR (59) 11 at 121; Christ the King Seventh Day Mission Vs Njoku (2005) ALL FWLR (287) 938 at 946, he submitted that the final address is an integral part of the hearing of any case and that it is a condition precedent to the delivery of judgment. He submitted that the right of address is a constitutional right, which cannot be taken away from any one by any court or tribunal. He relied on: Salami v. Odogwu (1999) 2 NWLR (173) 301: Okoebor Vs Police Council (2003) FWLR (189) 215 – 216.
Learned counsel submitted that failure to allow the parties to address the court resulted in an inconclusive trial, which in his view is a fundamental procedural irregularity. He urged the court to declare the judgment delivered on 16/11/2005 a nullity. In reply to the above submissions, learned counsel for the respondents submitted that the facts of Okoebor’s case (supra) are distinguishable from the facts of the instant case on the ground that in Okoebo’s case the parties were not invited to address the court before the matter proceeded to judgment whereas in the present case the court had adjourned the matter specifically to afford learned counsel the opportunity to address it. He submitted that in the circumstances the appellants having failed to take advantage of the opportunity afforded them could not be heard to say that their constitutional right to fair hearing was violated. He relied on: Newswatch communications Ltd. vs Atta (2006) 12 NWLR (993) 144 at 170 H & A. He referred to the reasons given by the learned trial Judge for refusing to allow a further adjournment of the matter and submitted that there is no appeal against the findings contained at page 214 lines 15 – 35 of the record. He contended that having regard to the antecedents of the case the learned trial Judge was justified in refusing the application for adjournment. He agreed with the view expressed by the learned trial Judge to the effect that the purpose of the final addresses is merely to aid the court in writing its judgment and that even without the final addresses there was sufficient material before it upon which to determine the issues in controversy between the parties. He relied on: B.E.A.N. Ltd. v. Aswani Textiles Ltd. (1991) 2 NWLR (176) 539 at 675 A; Niger Construction Ltd. Vs Okugbeni (1987) 4 NWLR (57) 787 at 792. He noted that the court dispensed with final addresses in respect of both parties and contended that there was thus no miscarriage of justice.
Learned counsel submitted further that for a judgement to be set aside for non-compliance with Section 294 (1) of the Constitution it must be shown that the non-compliance occasioned a miscarriage of justice. Relying on the case of: Rossek Vs A.C.B. (1993) 8 NWLR (312) 382 at 476 – 479 G – G. he submitted that Section 294 (1) ought to be read in conjunction with Section 294 (5). He contended that the appellants have not shown that they have suffered a miscarriage of justice in the circumstances of this case. He drew the courts attention to the fact that the case was originally instituted in 1986 and was eventually determined after being sent back for trial de novo in 2005, a period of nineteen years. He submitted that the maxim “justice delayed is justice denied” is quite apposite in this case. He urged the court to resolve this issue against the appellants.
In his reply brief, learned counsel for the appellants submitted that subsection (5) of Section 294 only applies where a judgment is delivered more than 90 days from the date of delivery of final addresses. He submitted without conceding that even if the subsection applies it should be read in conjunction with subsection (6), which makes it mandatory for the person presiding at the sitting where the noncompliance with subsection (1) occurred to make a report to the Chairman of the National Judicial Council. He also maintained that no new issues were raised, as the complaint regarding the findings of fact made by the learned trial Judge was raised in the particulars of error under Ground 2 of the Amended Notice of Appeal from where the appellants’ first issue for determination was distilled.
The law is trite that the grant or refusal of an application for adjournment is at the courts discretion. In the exercise of discretion the court is required to act judicially and judiciously having due regard to all the facts and circumstances of the case. Once the discretion has been properly exercised an appellate court would not interfere with it. See: Odusote vs Odusote (1971) 1 NMLR 228. It has been argued on behalf of the appellants that final addresses are an integral part of a trial.
Learned counsel has urged this court to hold that the failure of the learned trial Judge to allow the parties address the court at the conclusion of the hearing is a fundamental irregularity sufficient to render the proceedings a nullity. He placed heavy reliance on the provisions of Section 294 (1) of the 1999 Constitution.
There is no doubt that the addresses of counsel are an important part of the adjudication process. Section 294 (1) of the 1999 Constitution provides:
“294. (1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with fully authenticated copies of the decision within seven days of the delivery thereon.”
The Constitutional nature of the right of address was reiterated in the case of Obodo Vs Olomu (supra) relied upon by learned counsel for the appellants. In that case Obaseki, JSC opined thus:
“The hearing of addresses by every court established by the constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be given before judgment is delivered. See Section 255(1) of the Constitution of the Federal Republic of Nigeria 1979. Its beneficial effect and impact on the mind of the judge is enormous but unquantifiable. The value is immense and its assistance to the judge in arriving at a just and proper decision, though dependent on the quantity of address cannot be denied.
The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can.”
However, Section 294 (5) of the Constitution provides a caveat to Section 294 (1) thus:
294. (5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appal or review of that decision is satisfied that the party complaining suffered a miscarriage of justice by reason thereof.”
It follows therefore that to successfully challenge a judgment on the basis that it violates Section 294 (1) of the constitution, the complainant must also show that he has suffered a miscarriage of justice thereby. In the case of Obodo Vs Olomu (supra), the judgment was set aside because the court failed to hear the address of one of the parties. In the case of Eshenake Vs Gbinije (supra), also relied upon by learned counsel for the appellants the Tribunal refused to consider the written address filed by the appellants, which was filed one day outside the time ordered by the Tribunal but four days before the delivery of its judgment. The respondents also filed their address one day late. The Tribunal considered the address filed by the respondents but discountenanced that filed by the appellants. It was on this basis that this court held that the appellants’ right to fair hearing had been breached and declared the trial a nullity. In the case of Ukwueze Vs Ani (2007) LPELR- CA/E/150/2003 the record showed that on 10/3/2003 the learned trial Judge adjourned the proceedings to 25/3/2003 for continuation. Thereafter nothing was shown on the record until 19/5/2003 when judgment was delivered. It was held that the failure of the learned trial Judge to conclude the case by taking oral addresses of counsel prior to the delivery of his judgment was a serious breach of the principle of fair hearing provided for in the constitution. The judgment was accordingly declared a nullity and set aside. In that case, His Lordship, Bada, JCA in his contribution, referred to the dictum of Belgore, JSC (as he then was) in Obodo Vs Olomu (supra) to the effect that the right and denial of the right to address the court might render the proceedings a nullity if miscarriage of justice is occasioned.
The gamut of the above observations is that it is not enough for the appellants to argue that they were not allowed to address the court. In the instant case, the court dispensed with addresses by both parties. The appellants therefore have the burden to show that the denial of the right to address the court was a wrong exercise of discretion and occasioned a miscarriage of justice in the circumstances of this case.
I shall now apply the principles to the facts of this case. On 11/4/2005, after the evidence of DW5 was taken, learned counsel for the defendants requested an adjournment to enable him call his remaining witnesses. The learned trial Judge held as follows:
“COURT Case will be adjourned at the instance of the defendants – though reluctantly. It is my order that the remaining number of witnesses should be brought to curt by the defendants at the next date. Failure of which will fore the court b close defendants’ case. Case adjourned b Wednesday 20th April 2005 for further hearing.”
On 20/4/2005, although the 1st defendant was present, his counsel, Mr. Omosowone was absent. The 2nd plaintiff was in court with his counsel, Mr. Isumede. Mr. Isumede indicated his preparedness to continue with the trial. The learned trial Judge ruled thus:
“COURT: This very old case is part-heard. It was sent down by the Court of Appeal in Appeal No. A/B/59/90, in an order of that court given on 4 July 1997. It was part of the order of that court that the case be tried de-novo, and to be given an accelerated hearing because of its age. Trial commenced before me de-novo on 21st October 2003. Between that date and now we have recorded twenty (20) appearances in all. On 11th April 2005, when this case came up in court, Mr. Omosowone, learned counsel for the defendants was present in court. He did call DW5 and thereafter ask (sic) for an adjournment, which was reluctantly granted by the court with a strong warning that parties should be ready to continue with the trial today. The said learned counsel is not in court this morning. Up till now no information has been made available for the court to rely upon, relating to why counsel is not in court, In my humble opinion, I believe defendants have no more witnesses to call in this matter.
I therefore close their as for them with the evidence of DW5. Case will now be adjourned for counsel for parties to address the court.
Case is adjourned to Monday Friday of May, 2005 for address.” (Emphasis supplied)
On 9/5/2005, learned counsel for the defendants wrote a letter to the court requesting an adjournment on the ground that he was before the Court of Appeal, Benin Division. Learned counsel for the plaintiffs urged the court to hold that the defendants had no address to deliver and to allow him to address the court. The learned trial Judge was inclined to grant one more adjournment of the case for address. The suit was adjourned to 31/5/2005, one of the dates suggested in the defendants’ counsel’s letter. On 31/5/2005, learned counsel for the defendants was in court. He moved and was granted an application for leave to call two additional witnesses. The suit was adjourned to 21/6/05 for further hearing. The evidence of DW6 was taken and thereafter the matter was adjourned for further hearing to 5/7/2005, 20/7/2005 and 3/8/2005. During this period the defendants sought and obtained leave to file a further amended statement of defence and counter claim.
DW6 concluded his testimony. On 3/8/2005 the defendants closed their case and the suit was adjourned till 4/10/2005 for counsel to address the court.
The record of proceedings for 4/10/2005 is reproduced hereunder:
“1st Plaintiff absent, 2nd Plaintiff present 1st defendant present, 2nd defendant absent, Mr. S. Isumede, of counsel for plaintiffs. Mr. O. R. Omosowone of counsel, for the defendants.
Mr. Omosowone says this matter is for address this morning. Ordinarily I ought to start my address. I am sorry to say that I will not be able to start my address. I am not in proper frame of mind. I am in court this morning because of the respect I have for court.
I was about coming to court when I heard this morning that my cousin had an accident along Igbokoda road and died in the accident. I will be happy if the court would grant me an adjournment. I am sorry for delaying this matter further.
Mr. Isumede says address of counsel is never part of evidence.
The Court can even do away with address of counsel and proceed straight to judgment where the justice of the case demands it.
Considering the history of this case, I am appealing to my Lord to allow me to address the court this morning. Alternatively the court should consider giving an order that written addresses be filed by counsel for parties.
COURT On several occasions, I had been compelled to make reference to the age and long history of this case. The sole factor that caused the reference to be made on each occasion was the incessant application for adjournment at the instance of the defence. I would like to refer to my record relating to what transpired in court in this case on 31st May 2005 and 21st June 2005. Besides there are other occasions when this case was adjourned just because of the application made for it by defendants’ counsel or somebody holding his brief. It has happened again today, despite the fact that parties, their counsel and this court agreed on 3rd August 2005 to have addresses delivered in court by counsel for parties. As much as I am in sympathy with Mr. Omosowone on the death of (sic) purported death of his cousin, I want to say that I am not persuaded that that incident is bad enough to cause this case to be adjourned again at the instance of the defendants.
I want to agree with Mr. Isumede, learned counsel for the plaintiffs that counsel’s addresses do not form part of evidence of parties before the court. I would like to add that addresses of counsel are meant to aid or assist the Judge in writing his judgment. A good Judge should be able to write his Judgment or ruling even without the addresses of counsel for the parties in the case. I want to rely on the case of Igwe Vs Alvin Ikoku College of Education (1994) 8 NWLR (363) 459 at 481. See also Niger Construction Ltd. Vs Okugbe (1987) 4 NWLR (67) 787.
I want to say that I am able to write my judgment in this case even without waiting for counsel’s addresses. Moreso when all the facts necessary for the determination have been produced or given before me. I will be failing in my duty if I should refuse to follow the two decisions of our courts cited hereinbefore, and numerous others not cited.
This, I believe would amount to disobeying the order of the Court of Appeal Benin Division dated 4/7/1997, relating to giving this case an accelerated trial, when the case was sent down for a trial de-novo by that court.
I therefore refuse the application for adjournment made by learned counsel for the defendants. I also refuse the application for the filing of written addresses by counsel for parties. Neither will I allow learned counsel for the plaintiffs to give his address first. Rather I will dispense with the addresses of counsel for parties in this case. I am proceeding straight to writing my judgment. Case is therefore adjourned to Wednesday November 2005 for judgment.
SIGNED
Hon, Justice W.A. Akintoroye
JUDGE
4/10/2005.”
Having carefully examined the record of proceedings and having regard to the chequered history of this case, I am of the view that the learned trial Judge properly exercised his discretion in refusing to allow any further delay in the conclusion of the trial. Right from the inception of the hearing de-novo, the learned trial Judge had consistently commented on the apparent reluctance of the defendants to have the case disposed of speedily. Indeed, as a result of the absence of the defendants and their counsel on several occasions, some of the plaintiffs’ witnesses (PW1 and PW5) were not cross-examined. Nevertheless the court always bent over backwards to accommodate them, Justice is not a one-way track. In the instant case, the appellants were given the opportunity to address the court but failed to utilise it. Justice must be seen to have been done to all the sides in a dispute. Considering the lackadaisical attitude of the appellants throughout the trial, to allow a further adjournment at that stage would have opened the floodgate to further requests for adjournment. In the unlikely event that I am wrong in this view, I hold that the appellants failed to show that they suffered any miscarriage of justice by the refusal of their application. Rightly or wrongly, the addresses of both parties were dispensed with, thus no party was placed in a better position than the other. Furthermore, learned counsel failed to demonstrate in what way the decision would have been different had the court had the benefit of the final addresses of counsel.
In the case of Orugbo Vs Una (2002) 9 – 10 SC 61 at 85 – 86, the Supreme Court per Tobi, JSC sounded a note of caution to litigants who resort to seeking refuge under the fair hearing provisions of the Constitution. His Lordship stated thus:
“There is need for caution in the application of the fair hearing provision in the constitution. Where the facts of the case, as in this appal, do not support the application of the provision, parties should not urge the court to invoke the provision and even if so urged the court should not succumb to the pressure. … It has become the fashion for litigants to resort to the right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court … The fair hearing constitutional provision is designed for both parties in the litigation and the court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder.
… Fair hearing is not a cut-and-dry principle of which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
Having failed to show that they suffered a miscarriage of justice in the circumstances of this case, I resolve this issue against the appellants.
Issue 2
The second issue for determination is whether, having regard to the totality of the oral and documentary evidence, the learned trial Judge rightly entered judgment in favour of the respondents.
In support of this issue, learned counsel for the appellants referred to the five ways of proving title to land as laid down in the case of Idundun Vs Okumagba (1976) – 10 SC 227. He submitted that where, as in this case, a party relies on traditional history to prove his title he must plead and prove the following:
(i) Who founded the land;
(ii) How the land was founded; and
(iii) Particulars of the intervening owners through whom he claims.
He referred to: Ezeokonkwo Vs Okeke (2002) 98 LRCN 1104 at 1116; Aisemo Vs Abraham (2001) FWLR (63) 72 at 75. He submitted further that the area or identity of the land in respect of which the declaration is sought must be proved with certainty. Learned counsel contended that there is material inconsistency between the averments in paragraphs 14 and 26 of the 3rd amended statement of claim on the one hand and paragraphs 2, 4 and 8 thereof. He submitted that the inconsistency continued with the evidence given by the respondents’ witnesses in the following instances:
a. The respondents’ original ancestor: He noted that PW2 stated that his name was Omojuwa who migrated from Ile-Ife to settle at Moribodo (or Ode-Osoro) while PW3 said their original ancestor was Odofin-Ofilo.
b. When the land was founded: He submitted that PW3 stated that their ancestor and his descendants had been cultivating the land on which the land in dispute is situate for more than 600 years while PW9 stated under cross-examination that he did not know when the Odofin-Ofilo family got the land. He noted that PW6 however testified that members of the Odofin-Ofilo family had been enjoying the land from time immemorial.
c. Ownership of the land: Learned counsel for the appellants submitted that PW2 and PW6 testified that the land belongs to Odofin-Ofilo family white PW8 stated that he did not know the family the respondents came from.
He noted further that even though PW8 had earlier stated that he knew the plaintiffs’ family, he claimed that he did not know the family that owns Agirifon. He contended that the evidence of PW8 amounts to an admission against the interest of the respondents and consequently damaged their case. He referred to: Dakpiri Vs Iyala (2005) 1 FWLR (243) 10 at 26.
d. Appellants’ tenancy: Learned counsel referred to the evidence of PW2 and PW7 who both stated under cross-examination that the appellants’ family paid customary tributes (isakole) to the respondents’ family and contrasted this with the evidence of PW3 who stated that the appellants’ family has not been paying customary tributes to the respondents’ family because the family was only given land to build houses. He argued that the evidence of PW3 supports the pleading in paragraph 20 of the 3rd amended statement of claim to the effect that the appellants’ family has no farming rights. He argued further that the appellants’ family could not have been paying tributes to the respondents’ family 300 years ago, as stated by PW2 when, under cross-examination the same witness stated that the appellants’ family was settled in Ilutitun, part of the land in dispute after Ilutitun was founded, He noted that both parties agreed that Ilutitun was founded between 1919 and 1920, which was not up to 100 years to the date he testified.
e. Description and identity of the land in dispute: Learned counsel referred to the evidence of PW2 and submitted that the identity and location of the land in dispute has not been proved. He contended that Exhibit A only shows some features of the land in dispute. He argued further that the respondents failed to lead any credible evidence about the ownership of the land. He submitted that a party relying on a plan must link its contents to his ownership of the land. He referred to: Fasina Vs Ogunkayode (2005) ALL FWLR (283) 116 at 136 – 137.
Learned counsel submitted that in a claim for declaration of title the claimant must succeed on the strength of his own case and not on the weakness of the defence, if any. He referred to: Adeniran vs Alao (2001) 92 LRCN 3253 at 3255; Barje Vs Gunduma (2001) FWLR (74) 314 at 325. He submitted that the inconsistencies and contradictions in the respondents’ case were irreconcilable and had therefore irreparably damaged their case. He submitted further that having failed to discharge the burden of proving their title to the land in dispute, the appellant were not entitled to the declaration sought and could not be held to be in possession of the land. He submitted that possession resides in the claimant who establishes a better title. He referred to: Akinterninwa v. Oladunjoye (2000) FWLR (10) 1590 at 1700; Owhonda Vs Ekpechi (2003) 113 LRCN 2525 at 2541; Ejebu Vs Okoko (2001) FWLR (79) 1350 at 1366. He submitted that having failed to prove possession of the land in dispute the respondents were also not entitled to damages for trespass and injunction. He submitted that it is trite that only a person in possession of land can maintain an action for damages for trespass and injunction. He relied on: Ezeokonkwo v. Okeke (supra) at 1121; Akinterinwa Vs Oladunjoye (supra) at 1712; Nwadiogbu Vs Nnadozie (2001) FWLR (61) 1625 at 1537. He argued that the learned trial Judge failed to take the inconsistencies in the respondents’ evidence of traditional history into consideration and, in his view, erroneously placed heavy reliance on Exhibit B – B5, which was in respect of the Rebuja chieftaincy title of Osooro, to hold that their evidence of traditional history was more probable than that of the appellants.
Learned counsel further submitted that having regard to the contradictory traditional evidence led by the respondents, the principle in the case of Kojo II Vs Bonsie was inapplicable in the instant case. He submitted that where the evidence of one of the parties is intrinsically conflicting and self-contradictory, a reasonable court would not place any reliance on it. He submitted that the rule in Kojo II v. Bonsie is only applicable where there are two credible but competing traditional histories with respect to the title to the land in dispute and not where one of the histories is contradictory or not worthy of belief. He relied on: Okoko Vs Dakolo (2006) ALL vs Bolarinwa (2004) FWLR (215) 1652 at 1678 – 1679. He urged the court to resolve this issue in the appellants’ favour.
In reply learned counsel for the respondents submitted that a thorough reading of paragraphs 2, 4,8,14 and 26 of the 3d amended statement of claim would reveal that there were no inconsistencies or contradictions as contended on behalf of the appellants.
Learned counsel urged the court to discountenance the submissions regarding alleged inconsistencies in the respondents pleadings and the alleged vagueness of the said pleadings on the ground that the points raised were being raised before this court for the first time without leave. He relied on: Claren (Nig.) Ltd. vs University of Jos (1994) 1 NWLR (323) 631 at 655 B – E. He submitted further that the issue of vagueness of pleadings cannot be raised at this stage’ He submitted that the appellants ought to have requested for further and better particulars before the trial commenced.
Alternatively he addressed the issues raised by the appellants as follows:
a. Respondents’ original ancestor: Learned counsel submitted that there was no contradiction between the evidence of PW2 and PW3. He noted that PW2 testified that it was Omojuwa who migrated from Ile-Ife and settled at Moribodo or Ode-Osoro while PW3 stated that Odofin-Ofilo was their original ancestor. He submitted that from the pleadings and evidence Omojuwa migrated from Ile-Ife and settled at Moribodo (Ode-Osoro). That the said Omojuwa had three children, among whom was Jibulu. That one of the children of Jibulu was Odofin-Ofilo and it was Odofin-Ofilo who left Moribodo and lived at Agirifon with his descendants.
He submitted that the land in dispute is part of Agirifon where Odofin-Ofilo lived and that Omojuwa who founded Moribodo had nothing to do with Agirifon land. He contended that the evidence of both witnesses shows the same genealogical tree and is therefore not contradictory.
b. When the land was founded: Learned counsel submitted that PW9’s evidence that he did not know when Odofin-Ofilo got to the land was not inconsistent with the evidence of PW3 who said his family had been cultivating the land for over 600 years. He submitted further that the evidence of PW6 stating that some members of the Odofin-Ofilo had been cultivating the land from time immemorial could not be said to be inconsistent with the evidence of PW3 and PW9.
c. Ownership of the land: Learned counsel submitted that PW8 was a boundary man and therefore his evidence to the effect that he does not know the family the respondents came from or the family that owns the land did not contradict the evidence of PW2 and PW3 who testified that the land in dispute belongs to the Odofin-Ofilo family. He noted that PW8’s testimony was merely to the effect that the plaintiffs were farming on the land, which shared a boundary with his family land. He submitted that PW8 is not a member of the respondents’ family and his evidence could therefore not be construed as an admission against interest. He submitted that an admission against interest must be precise and unequivocal. He referred to: Udo Vs Okupa (1991) 5 NWLR (199) 365 at 386 A.
d. Appellants’ tenancy: Learned counsel submitted that the evidence of PW2 and PW7 to the effect that the appellants were their family’s tenants was elicited under cross-examination and cannot be used as the basis for showing contradictions in their evidence. He submitted that the fact of payment of customary tribute (isakole) by the appellants was not pleaded by either of the parties and therefore any evidence led in respect thereof would go to no issue. He referred to: Chukwuocha Vs Onuoha (1991) 4 NWLR (184) 234 at 243 A – B; Dina Vs New Nigeria Newspaper Ltd. (1986) 2 NWLR (22) 353. He noted that the evidence of these two witnesses regarding whether or not the appellants were customary tenants of the respondents was not considered by the learned trial Judge in reaching his decision.
e. Description and identity of the land in dispute: Learned counsel submitted that the identity of the land in dispute was clearly established through Exhibit A, the survey plan tendered by the respondents. He submitted that the tendering of a survey plan is one of the methods of proving title to land. He referred to: Aremu Vs Adetoro (2007) 16 NWLR (1060) 244 at 257 G – H; Thompson Vs Arowolo (2003) 7 NWLR (818) 163 at 203 D – E & 231 – 232 H – C. He submitted that the respondents’ witnesses gave uncontradicted oral evidence of the boundaries of the land as depicted in Exhibit A.
With regard to alleged contradictions in the traditional evidence of the respondents he submitted that upon a proper appraisal of the evidence led, it was shown that not all members of the appellants’ Lubokun family left Igbotako to ask for land at Agirifon. He submitted that the finding of the learned trial Judge that the traditional evidence led by the respondents was cogent enough to sustain their claim was buttressed by Exhibit B – B5. He submitted that where the findings of the court are not perverse and are supported by the evidence adduced before it, an appellate court would be reluctant to interfere. He relied on: Mafimisebi v. Ehuwa (2007) 2 NWLR (1018) 385 at 433 B – F; Samson Awoyale Vs Joshua Ogunbiyi (1986) 4 SC 78 at 131 paras. 10 – 15. He submitted that the appellants, having failed to challenge the findings of the learned trial Judge based on Exhibit B – B5 are deemed to have accepted the findings as correct. He submitted that although Exhibit B – B5 relates to Rebuja chieftaincy, it nonetheless stated the pattern and various hamlets settled by the descendants of Jibulu. He noted that in Exhibit B – B5, one G.B. Iwajomo acted on behalf of the appellants’ family and it was clearly stated therein that Odofin-Ofilo and his descendants lived at the Agirifon hamlet. He submitted that in law, Exhibit B – B5, being documentary evidence, is more credible than oral evidence and is usually used as a hanger to test the credibility of evidence.
He cited the case of: C.D.C. (Nig.) Ltd. Vs S.C.O.A. (Nig.) Ltd. (2007) 6 NWLR (1030) 300 at 366 G – H. He submitted, without conceding that even if there were contradictions in the traditional evidence given by the respondents, such contradictions were not fundamental or material having regard to Exhibit B – B5 and the unchallenged findings of the learned trial Judge in respect thereof.
With regard to the credibility of the traditional evidence led by the parties, learned counsel submitted that in so far as the appellants impliedly agreed in Ground 4 of the amended notice of appeal that there were two competing versions of traditional history both versions must be deemed to be credible because, in his view, competing histories could only exist where each version is credible. He contended that it would amount to approbating and reprobating on the part of the appellants to contend that the respondents’ traditional history is full of inconsistencies.
He submitted that based on the state of the pleadings, both parties claimed possession of the land in dispute. He submitted that in law there is a presumption in favour of the party who proves a better tide. He referred to Akintola Vs Lasupo (1991) 3 NWLR (180) 508 at 515 G – H. He submitted that in the instant case the learned trial Judge diligently followed the principles of law laid down in the aforesaid case and rightly found that the respondents proved a better title. He submitted that apart from their evidence of traditional history, the respondents proved exclusive possession of the land through their survey plan, Exhibit A, which showed the area where the appellants destroyed their crops. He also referred to the evidence of PW5, the respondents’ tenant on the land. He also referred to the evidence of DW4 who confirmed under cross-examination that members of Odofin-Ofilo family farm on the land. He submitted that having established exclusive possession of the land in dispute and the destruction of the respondents’ crops thereon by the appellants, the respondents were entitled to the award of damages for trespass and the order of injunction.
On the application of the rule in Kojo II Vs Bonsie (supra), learned counsel submitted that the rule is only applicable where the court finds both versions of traditional history given by the parties to be credible. He submitted that contrary to the submission of learned counsel for the appellants, the learned trial Judge having found the two versions of traditional history credible, correctly applied the principle in this case and correctly concluded that the respondents’ version was sufficient to sustain their claims. He submitted that the learned trial Judge did not reject the respondents’ traditional evidence. He urged the court to resolve this issue against the appellants.
In an action for declaration of title to land the onus is on the claimant to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendants case supports his case. See: Onwugbufor Vs Okoye (1996) 1 NWLR (424) 252; Shittu Vs Fashawe (2005) 14 NWLR (945) 671; Eze Vs Atasie (2000) 9 WRN 73 at 88: Adesanya Vs Aderonmu (2000) 13 WRN 104 at 115 lines 10 – 35.
The methods by which a claimant may establish title to land were settled by the Supreme Court in the case of Idundun Vs Okumagba (1976) 9 – 10 SC 227. They are:
(a) By traditional evidence.
(b) By production of documents of title duly authenticated and executed.
(c) By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment.
(e) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The claimant is not required to prove all the five ways. He would be entitled to a declaration if he establishes any one of them. Where a claimant relies on traditional evidence to prove his claim and it is found to be cogent it is sufficient to sustain his claim. However where the other party also relies on traditional evidence and there is a conflict between the histories, which the court is unable to resolve, or where the court finds the evidence to be inconclusive, the title may be established by evidence of numerous acts of possession and ownership or acts in recent memory. See: Akpan & Ors. Vs Otong & Ors. (1995) 10 NWLR (476) 108 at 130 A – C; Ekpo Vs Ita (1932) II NLR 58; Idundun Vs Okumagba (supra). It is not in dispute that the parties in this case relied on evidence of traditional history to prove their title to the land in dispute.
The first issue to consider in the instant case is whether the pleading in the 3rd amended statement of claim is contradictory. Learned counsel for the appellants referred specifically to paragraphs 2, 4,8,14 and 26 thereof. These and some other paragraphs are reproduced hereunder for ease of reference:
1. “The plaintiffs are farmers, members of Odofin Ofilo family and they reside at Agirifon quarters, Ilutitun, Osoro via Oktitpupa.
2. The plaintiff instituted this suit for themselves (sic) and on behalf of their family of Odofin Ofilo.
4. The plaintiffs’ family are the owner and in possession of a piece or parcel of land situate at Agirifon, Ilutitun, Osoro in Okitipupa Local Government Area, Ondo State and particularly shown and marked RED on their Survey Plan No. OD/0236/2003/001.
8. The plaintiffs original ancestor is called Omojuwa who migrated from Ile-Ife to other places and finally settled at Moribode otherwise called Ode – Osoro more than 600 years ago which settlement has never been disturbed since.
9. Omojuwa begat Jagbedo, Monogbe and Jibulu.
10. Jubulu begat Ehinmonuren, Odofin Ofilo (the plaintiffs), Seja and Lubokun.
11. The children of Jibulu later left Moribode and settled in different places for their farming.
12. Lubokun settled at Igbotako camp.
13. Ehinmonuren settled at Igo camp and Seja settled at Iju-Odu camp.
14. Odofin – Ofilo settled at Agirifon, part of the land now in dispute.
15. Jagbedo in his lifetime begat Ikuyinminu wile Lubekun begat Okunribido and Liliken and Ehinmonuren begat Aduwo Kobuwaje while Odofin Ofilo begat Jomo Akunjere, Oguntimehin, Oshodi. Oshodi begat Akinboyo, the first plaintiff in this case.
16. The elders in different camps thereafter decided to live close to each other and they settled at a meeting point close to each others’ cultivation and called the place Ilutitiun about 1919 – 1920.
17. The three elders that make up Ilutitun are Odofin Ofilo family, Ehinmonuren family and Jagbedo family led by Ikuyinminu whose land meet at Ilutitun while the Akokos who are predominantly hunters later came to join the plaintiff at Ilutitun and live at Ura quarters.
18. The Liliken family remained at Igbotako till date.
26. The plaintiffs and their family have been cultivating the land in dispute for more than 600 years.”
It is pertinent to note that where it is alleged that there are inconsistencies in a party’s pleading, individual paragraphs should not be read in isolation. The entire pleading must be read as a whole, when the above pleadings are considered as a whole, it is clear that what the plaintiffs are saying is that their original ancestor was Omojuwa, who migrated from Ile-Ife and eventually settled at a place called Moribode (or Moribodo). The said Omojuwa, from the pleadings had three children, one of whom was Jibulu. The plaintiffs traced their ancestry through Jibulu’s line. It is further pleaded that Jibulu’s children, who included Odofin Ofilo, their grandfather left Moribodo and settled in different places for farming. Odofin Ofilo settled at Agirifon quarters, which is part of Ilutitun. It is also pleaded that Ilutitun came to be when the elders of the various families (descendants of Jibulu) who had settled at different camps decided to live closer to one another. The meeting point was called Ilutitun, close to where each family cultivated its crops. The names of the families that made up Ilutitun were pleaded. I am unable to agree with learned counsel for the appellants that the respondents’ pleading regarding their traditional history is contradictory. I also agree with learned counsel for the respondents that if there was any aspect of the respondents’ pleadings that the appellants found to be vague, they ought to have asked for further and better particulars in accordance with Order 25 Rule 7 of the Ondo state High court (civil procedure) Rules 1987 before trial commenced. Having replied copiously to the various averments therein and led evidence based on their own pleadings, they cannot be heard at this stage to complain that the respondents’ pleadings were vague or nebulous.
On the alleged contradictions between the evidence of PW2 and PW3 regarding their original ancestor, I have carefully considered the evidence of both witnesses.
The evidence of PW2, the 2nd plaintiff is essentially in line with his pleadings. He traced their genealogy from Omojuwa down to the present plaintiffs (respondents herein). PW3 on the other hand testified that Odofin Ofilo was their original ancestor.
He agreed that the Odofin Ofilo family and the Liliken family, to which the appellants belong share the same ancestor, Omojuwa. Having regard to the pleadings referred to earlier, I am of the view that there is no contradiction in the evidence of these two witnesses regarding the founding of the land. This is because although both parties are descendants of Omojuwa, it is pleaded that Jibulu, one of his sons left Moribodo, the original settlement and settled at Agirifon. Jibulu begat Odofin Ofilo, the respondents’ ancestor. There is no pleading to the effect that Omojuwa ever left Moribodo after settling there. Therefore although he is the grand ancestor of both the plaintiffs and the defendants, as far as the land in dispute is concerned, Odofin Ofilo was the founder. What PW2 did was to trace their ancestry to the time before the settlement at Agirifon. In my view, the evidence of both witnesses therefore complement rather than contradict each other.
Another issue raised on behalf of the appellants is that PW3 testified that the respondents had been cultivating the land in dispute for over 600 years while PW6 stated that the family had been enjoying the land from time immemorial. Learned counsel noted that PW9 on the other hand stated that he did not know when the family acquired the land. The fact that PW9, a member of Ojagbedo family (Ojagbedo was one of the children of Omojuwa) stated that he did not know when Odofin Ofilo acquired the land in dispute does not contradict the evidence of PW3 who said he founded the land 500 years ago or the evidence of PW6 who said the family had been enjoying the land from time immemorial. The crux of the evidence is that the family had been in undisturbed enjoyment of the land for several generations.
Learned counsel has argued that the evidence of PW8 amounts to admission against interest because he stated that he knew the plaintiffs’ family but at the same time stated that he did not know who owned Agirifon. As observed by learned counsel for the respondents, PW8 testified as a boundary man. He did not testify as a person conversant with the respondents’ family history. He stated that he knows the Plaintiffs as farmers on Agirifon land at Ilutitun and that the Osoromi River separates their land from his. It cannot be construed as an admission against interest if the witness says he does not know the family the plaintiffs came from or who owns Agirifon. Nothing was put to him under cross-examination to suggest any reason why he would be conversant with the respondents’ family history. It has been held that for an admission against interest to be valid in favour of an adverse party, it must not only vindicate or reflect the material evidence before the court, it must also reflect the legal position. Niki Tobi, JSC in: Odutola Vs Papersack Nig. Ltd. (2006) 11- 12 SC 50 at 75 – 76 held thus:
“Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purpose as superfluous and a court of law is entitled not to assign any probative value to it.”
In the instant case, I am of the respectful view that the evidence of PW8 was not and could not be construed as an admission against interest. His evidence in respect of one of the boundaries of the land as pleaded by the respondent was not challenged.
Another issue raised by the appellants was as to whether the respondents proved that the appellants were customary tenants on the land in dispute.
Paragraphs 24 and 27 of the 3rd amended statement of claim are relevant and are reproduced hereunder:
24. “The defendants belong to loyal individual (sic) of Lubokun descendant (sic) particularly from Liliken family who begged for land from plaintiff (sic) family to build only.
27. The plaintiff (sic) had been leasing part of the land to Urhobo tenants who have been paying Ishakole to them (plaintiff) for many years up till the moment the defendants destroyed some plaintiffs (sic) crops and that of their tenants on the land and this was the immediate cause of the institution of the action.” (Emphasis mine)
It is quite clear from the paragraphs reproduced above that the respondents never pleaded that the appellants were their customary tenants on the land, paying Ishakole (customary tribute). They pleaded that members of the appellants’ family were given land to build on. Parties are bound by their pleadings. Any evidence led on facts not pleaded goes to no issue. See: Emegokwe v. Okadigbo (1973) 4 SC 113; Pan Bisbuilder (Nig.) Ltd v. First Bank of Nig Ltd (2000) 1 SC 71; (2000) 1 NWLR (642) 684: American Cynamid Co. Vs Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (171) 15. I agree with learned counsel for the respondents that the issue of the appellants’ alleged customary tenancy was not one of the issues in contention between the parties at the trial. It was also not one of the factors considered and decided upon by the learned trial Judge. Any evidence in respect thereof therefore goes to no issue.
The fifth issue specifically highlighted by learned counsel for the appellants was that the respondents failed to prove the description and identity of the land in dispute. The respondents tendered Exhibit A, a survey plan of the land in dispute including the area allegedly trespassed upon by the appellants. The plan also shows in detail the various holdings of members of Odofin Ofilo family and their tenants.
PW1, Femi Falade, the surveyor who prepared the plan testified as to its features. He was not cross-examined on his evidence. PW4, PW6 and PW8 are boundary men in relation to the land in dispute. Their evidence in this regard remained unshaken under cross-examination. It is also clear from the evidence adduced by both parties that there was no dispute as to the identity of the land in dispute. Having regard to the uncontroverted evidence before the court on this issue, the contention of learned
counsel for the appellants that the respondents failed to prove the identity of the land cannot be supported.
The final contention on behalf of the appellants was that there was no basis for the application of the rule in Kojo II v. Bonsie because the evidence of traditional history led by the respondents was not credible. This issue is raised in the appellants’ issue 3, now subsumed in issue 2. It was distilled from ground 4 of the amended notice of appeal. Ground 4 reads thus:
4. ERROR IN LAW
The learned trial Judge wrongly applied the principle stated in Kojo II Vs Bonsie to the instant case and thereby erred in law in believing the plaintiffs’ traditional history and disbelieving the defendants’ traditional history.
PARTICULARS OF ERROR
(i) The learned trial Judge depended heavily on the contents of Exhibit A the survey plan of the entire land in dispute tendered by the plaintiffs and the evidence of PW5 in believing the plaintiffs’ traditional history.
(ii) The learned trial Judge discountenanced evidence of recent act of ownership and possession of the defendants such as grants of land made by the defendant family to the (a) Ilutitun Community for the establishment of market and Moribodo Grammar School and building of the Rebuja of Osooro’s place, (b) to the Okitipupa Oil Palm Company for oil palm plantation; (c) to the Anglican Communion for the establishment of the Bishop’s Court; (d) to the Union Bank Plc. for the establishment of a branch of the bank in Ilutitun.
(iii) The defendants’ family received compensation from the Okitipupa Oil Palm Company for the destruction of the property of its members on the land.
(iv) The learned trial Judge failed to evaluate the competing versions of the traditional evidence of the parties in the instant suit and test their veracity with recent facts before believing the plaintiffs’ traditional history or evidence.”
From the ground of appeal above, it is evident that the appellants’ complaint is not that the respondents’ evidence of traditional history was not credible but that their (appellants) evidence was more believable particularly having regard to facts in recent history. Where a claimant relies on traditional evidence to prove his claim and it is found to be cogent it is sufficient to sustain his claim. However where the other party also relies on traditional evidence and there is a conflict between the histories, which the court is unable to resolve, or where the court finds the evidence to be inconclusive, the title may be established by evidence of numerous acts of possession and ownership or acts in recent memory. See: Akpan & Ors. Vs Otong & Ors. (1996) 10 NWLR (476) 108 at 130 A – C; Ekpo Vs Ita (1932) II NLR 68; Idundun Vs Okumagba (supra). The important consideration here is that the rule in Kojo II Vs Bonsie would apply where there are conflicting traditional histories, both probable, which the court is unable to resolve. The mere fact that histories are conflicting is not sufficient to warrant the application of the rule. It is a further requirement that the court is unable to resolve the conflict. It is only then that recourse would be had to facts in recent history. See: Morenikeji & Ors. Vs Adegbosin & Ors. (2003) 8 NWLR (823) 512 at 638. In the instant case, although the learned trial Judge found the evidence of traditional history led by both parties to be conflicting, he was able to resolve the conflict without invoking the rule in Kojo II Vs Bonsie. It was in the event that his conclusion was found to be wrong that he proceeded to apply the rule by reference to acts in recent memory.
In an attempt to determine which of the competing traditional histories was more probable the learned trial Judge reviewed the pleadings and evidence of the parties from pages 235 to 240 of the record. He referred to paragraphs 1 – 3 and 17 (ii) of the further amended statement of defence and counter claim where the appellants pleaded as follows:
1. “The defendants are descendants of Lubokun, one of the three children of JIBULU the son of Omojuwa.
2. The defendants state that Lubokun begat Liliken Omojuwara.
It was Omojuwara who brought the Liliken family to Ilutitun in 1920 and settled at Agirifon, a quarter in Ilutitun, they came from Moribodo.
3. Omojuwa begat Onisile – Liliken who did on 4/9/96 – well above one hundred years of age. Onisile was the 9th Liliken to head Agirifon quarter. The 10th Liliken did shortly and the 11th Liliken has sine been installed in accordance with Customary law since 2001.
17.(ii) Lubokun family split into two one had long left to found Igbobko, while the other remained at Moribodo and later left for Ilutitun led by Liliken Omojuwara – Ale 1st Liliken of Omojuwara.”
He considered the above pleading in conjunction with paragraph 3 of the respondents’ reply to the amended statement of defence and defence to counter claim dated 1/9/2003 at page 105 of the record and paragraphs 3, 4 and 5 of their reply to the further amended statement of defence and counter claim dated 6/12/04 at pages 157 – 158 of the record where in they averred thus:
“3. The plaintiffs aver that during the struggle to fill the vacant stool of Rebuja many years ago, various ruling houses in Osoro stated the detailed history of Rebuja of Osoro and sent a letter detailing the history to the then Western State Commissioner for Local Government and Chieftaincy Affairs, Ibadan.
4. The detailed history stated and endorsed by the then had of Liliken family and others, also stated detailed pattern (sic) and those who settled or lived in various places in Osoro which included Agirifon.
5. The plaintiffs shall Ender the said letter dated the lf, day of November 1971 rent to the Commissioner for Local Government and Chieftaincy Affairs, Ibadan. ”
The letter referred to in paragraph 5 above was tendered in evidence and admitted by consent of the parties. It was marked Exhibit B – B5, Page B3 was particularly relevant to the facts of this case. His Lordship reproduced same and held thus at page 239 of the record:
“The said document Exhibit B – B5 was a petition sent by the entire Ilutitun Lumure Families, through the Inspector/Divisional Officer, Divisional Office, Okitipupa, to the Commissioner for Local Government and Chieftaincy Affairs, Western State Government, Ibadan. It was in respect of succession to the vacant stool of the Rebuja of Osoro. Some of the signatories to the mid petition were Chief E.F. Aduwo, Chief Akindele, G.B. Iwajomo and Chief Bodewa Akinmosin, who signed for and on behalf of the entire members of Jibulu Ruling House.
At this point, I would like to note the following points: (i) That defendants are descendants of Jibulu, who was the father of Lubokun, the son of Omojuwa. See paragraph I of the defendant’s Further Amended Statement of Defence and Counter-Claim. In his evidence in-chief before this court, DW4 who is the 1st defendant gave evidence thus:
“It is not true that Jibulu begat Odofin Ofilo. Jibulu had three (3) children namely Ehinmonoren; Seja; and Lubokun.”
From the facts pleaded in paragraph 7 of the aforementioned pleading, and that part of DW4’s evidence quoted hereinbefore, I want to believe that it is reasonable to conclude that Chief E. F. Aduwo, Chief Akindele;G. B. Iwajomo and Chief Badewa Akinmosin who signed Exhibit B – B5 acted for and on behalf of defendants family.
(ii) In the evidence of one Mr. Nathaniel Olaseteminikan Fafoluyi, who gave evidence as DW5, he said inter-alia thus:
“I know G.B. Iwajomo. I came to know him in 1981. I know him then as the Liliken of Ilutitun.”
The G.B. Iwajomo D.W5 said he knew in 1987 as Chief according to the plaintiffs. That fact has not been denied by the defendants, I want to believe therefore that the said Chief Liliken G. B. Iwajomo was a member of defendants’ family, as stated in the evidence in-chief by Oladapo Akintajuwa, who gave evidence as PW7, and identified the signature of G. B. Iwaiomo on Exhibit B – B5.
From my evaluation of these two traditional histories, it is my humble view that the traditional history or evidence given by the plaintiffs is more probable and preferable to that of the defendants.” (Emphasis mine)
I am of the considered view that the above finding of the learned trial Judge is fully supported by the evidence before the court. Exhibit B-B5, signed by members of the appellants’ family supported the evidence of the respondents that their ancestor, Odofin Ofilo was one of the children of Jibulu, the son of Omojuwa, their common ancestor. They pleaded and gave evidence of intervening owners from Omojuwa down to the present generation of respondents. Once the court was satisfied that the traditional history pleaded and proved by the respondents was more probable and believable than that of the appellants, the respondents had effectively established their claim for a declaration of title in their favour. His Lordship nevertheless out of abundance of caution went further and held as follows: “Assuming without conceding that I am wrong in holding that plaintiffs traditional evidence is better than that of the defendants, assuming both histories are plausible and capable of equal credibility, and the court is unable to decide which to believe (sic), the law relating to how to resolve the conflict has been enunciated in the case of Kojo ii v. Bonsie (1957) 1 WLR 1223, which the court considered in the case of Chief Lasisi Balogun & 3 Ors. Vs. Onaolapo Akinji & 5 Ors. (2005) 10 NWLR (Pt. 933) 394 at 470, There, it was held thus:
“The principle in Kojo II v. Bonsie establishes that where there is conflict of traditional history one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is not the guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable.”
See also: Odofin v. Ayoola (1984) 11 SC 72. That step I want to take now.
Plaintiffs tendered in court the Survey Plan of the entire land in dispute. It was admitted in evidence and marked Exhibit “A”.
The area trespassed upon or alleged to have been trespassed upon by defendants was verged BLUE in exhibit “A”. Plaintiffs indicated therein the holdings of many people that derived their title from their family by way of grant as members of the plaintiffs’ family and others who are not so indicated. The law is that for the defendants to be able to join issue with the plaintiffs, and effectively challenge such a plan, he must specifically put in issue the aspect of the plan he proposes to challenge. The way they could do this is to file a Survey Plan that would reflect what they want the court to believe instead of the plaintiffs’ plan. See: Igwe v. Alozienwa (1990) 3 NWLR (pt. 747) 735 at 748; Elias v. Omobare (1982) 5 S.C. 25. The defendants have no plan filed in this case. Thus none was admitted in evidence from their side.
Besides, the plaintiffs called one David Umukoro (PWs) as a witness. He stated before this court that he was a customary tenant placed on Agirifon land by the 1st plaintiff. He claimed to be a palm-fruits harvester on the land, and that he and other palm fruits harvesters on the land were paying tributes annually to the plaintiffs. In my humble view, these are facts in recent years as established by evidence, strong enough to persuade this court to believe the traditional evidence of the plaintiffs and disbelieve that of the defendants. I do believe the plaintiffs traditional history and I disbelieve the defendants’ traditional history. More so when there is no evidence given by the defendants strong enough to demolish the facts established by the plaintiffs through exhibit “A” and or PW5. …I hold the view that the success of the Plaintiffs in proving their claim through traditional evidence is enough to sustain their claim in this case.”(Emphasis mine)
I agree with the learned trial Judge that whichever way one considers the evidence adduced by the parties in this case i.e. the cogency of the traditional evidence or evidence of facts in recent history the respondents proved a better title than the appellants. As observed earlier both parties relied on traditional evidence to prove their claims. The appellants placed heavy reliance on acts of ownership and possession in recent years.
The position of the law is that acts of ownership and/or long possession are merely incidental to the title, if proved. In other words, once the radical title has been pleaded and proved, acts of ownership or possession resulting from such title need no longer be considered for they are non-issues. So held the Supreme Court in Eboade vs Atomesin (1997) 5 SCNJ 13 at page 22 lines 3 – 6. In the instant case, having failed to establish title based on traditional evidence, the acts of ownership and possession relied upon by the appellants went to no issue.
With regard to the appellants’ counter claim. His Lordship held at page 242 of the record:
“The defendants have a counter-claim in this case. I have reproduced it herein before. Since they are seeing (sic) in law as plaintiffs with respect to their counter-claim, the onus of proof is on them. They must succeed or fail on the strength of their case. I have reviewed the evidence adduced by them before this court. My opinion about it all is that there are some gaps in the chain of evidence led by them. Defendants/Counter-Claimants said Omojuwa begat Jibulu. Jibulu begat Lubokun. Lubokun begat Liliken Omojuwara, who in turn begat Onisile-Liliken. He was said to have died on 4/9/96. That was all. No fact was stated on the claimants with Liliken family. This court was not told who were the fathers or parents of the defendants, in Liliken dispute. Since they rely on traditional history the law is that where a party relies on traditional history to buttress his claim for declaration of title to a piece of land, he must adequately and sufficiently plead his root of title and adduce cogent evidence to support same. See: Ezekiel Ezinwa & 7 Or. Vs. Emmanuel Agu & 1 Or. (2004) 3 NWLR (pt. 867) 437 at 457-458. In the instant are, the defendants/counter-claimants who relied on traditional history to support their claim for a declaration of title to the land in dispute failed to plead adequately and sufficiently their root of title. This led to the dearth of cogent evidence regarding the traditional history touching their root of title.”
Once again, I am of the view that the finding of the learned trial Judge in this regard cannot be faulted. Having regard to the totality of the evidence before the court, I hold that there were no material inconsistencies in the traditional evidence led by the respondents. Their evidence was credible and sufficient to sustain the claim for a declaration of title in their favour. The application of the rule in Kojo II Vs Bonsie by the learned trial Judge was in fact surplussage. His Lordship thoroughly examined the evidence and drew the correct conclusions therefrom. I find no reason to disturb his findings. This issue is accordingly resolved against the appellants.
On the whole, I find no merit in this appeal. The appeal fails and is hereby dismissed. The judgment of the High Court of Ondo State, sitting at Okitipupa in Suit No. HOK/14/86 delivered on 16/11/05 is hereby affirmed. Cost are assessed at N75, 000.00 in favour of the respondents against the appellants.
CHIMA CENTUS NWEZE, J.C.A.: I had the privilege of reading the draft of the leading judgement which my noble Lord, Kekere-Ekun JCA, just delivered now. I agree with His Lordship’s reasoning and conclusion.
It is undeniable that section 294 (1) of the Constitution of the Federal Republic of Nigeria consecrates the right to final addresses. However, there is a snag here. The law is well settled that he who, positively, asserts the existence of a fact must prove it. The onus probandi is on him. This burden, save where the fact is, positively, admitted can only be discharged by evidence adduced at the trial and not through the dexterous argument in the final addresses of counsel.
This is so because final addresses, no matter how brilliant or alluring, cannot form or be valued as evidence nor can they supplant the status of evidence in the proceedings, Olufosoye v Fakorede (1993) 1 NWLR (pt 272) 747, 746; Nwadairo v SPDC (1990) 5 NWLR (pt 150) 322,339; Odebeko v Fowler [1993] 1 NWLR (pt 308) 637; Ishola v Ajiboye (1998) 1 NWLR (pt 532) 71, 93; Aro v Aro (2000) 14 WRN 51, 65.
This position does not, however, detract from their importance and utility. As a distinguished American Jurist, Dillon, observed in his Laws and Jurisprudence of England and America:
I feel reasonably assured of my judgement where I have heard counsel, and a very diminished faith where the case has not been orally argued, for mistakes, errors, fallacies and flaws elude us in spite of ourselves unless the case is pounded and hammered at the bar…
Except where a party is able to prove that due to the absence of final addresses, “mistakes, errors, fallacies and flaws” eluded the court, he may not be able to challenge any judgement delivered without them. This, probably, underscores the cogency of the draft person’s qualification in section 294 (5) of the Constitution. According to this subsection:
The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining suffered a miscarriage of justice by reason thereof
As my distinguished Lord noted in the leading judgement, the lower court dispensed with the final addresses of both parties. Hence, the appellants must, pursuant to the above subsection, satisfy this court that, by reason of the absence of the said final addresses, they suffered a miscarriage of justice. It is for the above reasons, and the more elaborate reasons contained in the leading judgement that I, too, shall dismiss this appeal as unmeritorious.
Appeal is, hereby, dismissed. I abide by the consequential orders of My Lord, Kekere-Ekun JCA.
CHINWE EUGENIA IYIZOBA, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother, K.M.O. Kekere-Ekun JCA. I entirely agree with him that the appeal is without merit and must be dismissed. For the same reasons so clearly stated in the lead judgment which I hereby adopt as mine, I too will dismiss the appeal and it is hereby dismissed. The judgment of the High Court of Ondo State, sitting at Okitipupa in Suit No. HOK/14/86 delivered on 16/11/05 is hereby affirmed. I also adopt the consequential orders as to costs made in the lead judgment.
Appearances
ADEMOLA ADEYEMO ESQ. For Appellant
AND
S. ISUMEDE ESQ. For Respondent
