ADETIMEHIN & ORS v. AYEKU & ANOR
(2022)LCN/16054(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/AK/54/2016
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
1. HIGH CHIEF MARTINS LUWOYE ADETIMEHIN (The Mahuneyin Of Igbodigo And Head Of Isowa Family) 2. ADETUWO AKINSOTO (Secretary Isowa Family) 3. HON. ORIMISAN EMAIYE 4. KEHINDE AKINDELE (For Themselves And On Behalf Of Other Members Of Isowa Family Of Igbodigo) APPELANT(S)
And
1. H.R.H OBA JOHN EBUNOLA AYEKU (The Ogbagberume Of Igbodigo) 2. PRINCE EMMANUEL OYEYEMI AYEKU RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A FORM IS PRESCRIBED BY AN ENACTMENT
This Court has held in APGA & Anor. V. Dantong & Ors. (2011) LPELR-9233 (CA) as per Ogunbiyi, JCA:
“Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference, if the difference is not in a material particular and is not calculated to mislead.”
See Section 23 of the Interpretation Act.
The Supreme Court also pronounced in Buknor Maclean V. Inlaks (1980) 8-11 SC 1 thus:
“As a general rule, forms to schedules in statutes are inserted merely as examples and guides and are meant to be followed impliedly only so far as circumstances permit.”
From the foregoing authorities, the judicial interpretation given to the rule is to the effect that mere failure to comply in exact terms of formats in schedules to an enactment does not necessarily invalidate the things done. The Appellants in this case at hand have not asserted or shown that the Oath contained in the statement of DW1, DW2, DW3, DW4 and DW5 who infact are the entire witnesses paraded by the Respondents, is calculated to either deceive or that they are deceived or misled thereby. You must however differentiate a statement made without oath and one made with irregular format.
The substantive provision of Section 4(2)(a-c) of the Oaths Act has cured every defect associated to form, in respect of Oaths taken or affirmation administered on anyone.
Subsection (2) of the Section provides:
“No irregularity in the form in which an oath or affirmation is administered or taken shall:
a. Invalidate the performance of official duties;
b. Invalidate proceedings in Court;
c. Render inadmissible evidence in or in respect of which an irregularity took place in the proceeding.”
The subsequent affirmation or Oath of the witnesses in open Court before they adopted the said statement would serve to cure the irregularity. See Udeagha & Anor. V. Omegara & Ors. (2010) 11 NWLR (PT. 1204) 168 at 195. PER BASHIR, J.C.A.
THE DUTY OF THE TRIAL COURT IN RESPECT OF THE EVIDENCE LED BY PARTIES IN A TRIAL
It is settled law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu vs Macjob (2015) 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353.
It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551. PER ABIRU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EVALUATON OF EVIDENCE CARRIED OUT BY A LOWER COURT
Thus, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26,Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. PER ABIRU, J.C.A.
YUSUF ALHAJI BASHIR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Ondo State sitting at Okitipupa in Suit No: HOK/60/2008 delivered on 10th day of June, 2015.
The Appellants as the Claimants before the lower Court claimed the following reliefs against the Respondents as per their Writ of Summons issued on 19th August, 2008.
(a) A DECLARATION that all the land in Igbodigo belongs to only members of Isowa and Aritimehin families respectively.
(b) A DECLARATION that only members of Isowa family have the exclusive rights over the Isowa family land.
(c) A DECLARATION that the Defendant who is a member of Aritimehin family has no right to enter into Isowa family land without the consent of members of Isowa family.
(d) A DECLARATION that the Plaintiffs being the owners are entitled to the certificate of the customary right of occupancy in respect of the parcel of land lying, being and situate in Ogbodigo along Igbokoda expressway which forms part of the large expanse of Isowa family land bounded as follows:
1st side by the Igodan Lisa land
2nd side by the Ayenuro family land of Ayeka
3rd side by the Baptist Church land, Igbodigo
4th side by the Igbokoda expressway.
(e) N2,000,000.00 damages for trespass committed by the Defendant on the Plaintiff’s land.
(f) Perpetual injunction restraining the Defendant, his agents, privies and whosoever acting of him from committing further act of trespass on the Plaintiff’s land.
Upon the service of the Claimants’ processes, the Respondents filed their separate Statement of Defence each of them raising a counter claim seeking among other reliefs a declaratory order “that the Plaintiffs and their Isowa family of Igbodigo can not lay absolute ownership claim over the piece of land the subject of the substantive action, having formed part of the Igbodigo community Land set aside in the 1950’s by the community for the urban development of Igbodigo community”.
At the end of the trial where both sides called evidence and tendered documents the Learned Trial Judge dismissed the Appellant’s claim and proceeded to grant the Respondents’ counter-claim in the following terms:
“In respect of the 1st Defendant’s reliefs A, B and C of the 1st Defendants counter-claim succeeds judgment is hereby entered in favour of the 1st Defendant and against the claimants as follows:
A. A Declaration that the land bounded as follows:
(i) One side at Yewa River (Okitipupa/Igbokoda Road)
(ii) Second side at Gaza Camp.
(iii) Third side by Igodan-Lisa land and
(iv) Fourth side by Ayeka land lying and situate within Igbodigo Kingdom belong to Igbodigo Community and not to any of its component families.
(B) A Declaration that the Claimants and their Isowa family of Igbodigo cannot lay absolute ownership claim over the piece of land, the subject of the substantive action herein, same having formed part of Igbodigo community land set aside in the 1950s by the community for the urban development of the Igbodigo community.
(C) A Declaration that the Claimants and their Isowa family of Igbodigo are bound by the land management committee arrangement of Igbodigo begun under the tenure of Oba W. A. Adun Omoge, the late Obagberume of Igbodigo in the 1950s.
With respect to the 2nd Defendant’s counter-claim, relief (1) only succeed judgment is hereby entered in his favour and against the claimants as follows:
A Declaration that the counter-claimant is entitled to the customary right of occupancy of the piece or parcel of land situate at Igbodigo, the same measuring 240ft by 12ft which is more particularly described on the survey plan no OD/1091/2008/116 dated 9/6/2008 and approved on 4/12/2008 prepared by A. O. Yusuf Licenced Surveyor.”
Aggrieved by this decision, the Appellants filed their Notice of Appeal at the lower Court challenging the entire judgment on the 3rd day of July 2015. Containing 10 (Ten Grounds of Appeal)
The records of appeal were transmitted on 21st March 2016 and deemed on 24th March 2021. The Appellants’ brief of argument settled by O. Lema Esq. was filed on the 11th February, 2021 and then deemed on 25th November, 2021 by order of this Court Learned Appellants’ Counsel formulated five issues for determination they are:
APPELLANTS ISSUES
(1) Whether having regards to the evidence before the Court, the Learned Trial Judge was right to have held that the claimants’ Isowa family has relinquished their title to the land in dispute to the Igbodigo community land allocation and management committee.
(2) Whether having regards to the evidence before the Court, the Igbodigo community land allocation and management committee was indeed set up to sell and transfer title to any land in Igbodigo to persons
(3) Whether there is proper evaluation of evidence of parties before the claims of the claimants were dismissed.
(4) Whether the Court was right to have granted the counter-claim of the defendant by declaring the land to Igbodigo community land allocation and management who is not a party before the Court.
(5) Whether the Defendants/Respondents’ witnesses’ Statement on Oath is competent as evidence in proof of the statement of defence and counter-claim of the Defendants/Respondents.
The first Respondent filed his Amended Brief of Argument settled by Omosola Odusola Esq. on the 19th day of March 2021 same was deemed on the 25th day of November, 2021 where the Learned Counsel distilled these two issues for determination.
1ST RESPONDENT’S ISSUES
1. Whether having regards to the material, admissible and credible evidence in this case the lower Court rightly found that the land in dispute was part of the Igbodigo community land and therefore justified in dismissing the claimant’s claim.
2. Whether having regards to the fact pleaded and the preponderance of evidence in this case the lower Court ought to have granted the 1st Respondent’s counter claim.
The second Respondent’s Brief of Argument filed on the 23rd February, 2018 has the following issue for determination:
2ND RESPONDENT’S ISSUES
(1) Whether having regards to the facts pleaded and evidence led the lower Court was not right in granting the 2nd Respondent’s Counter-claim for a declaration of title to the land in dispute.
The Appellants have also filed Appellants’ Reply to the Respondents’ Brief of Argument duly adopted on 16th March, 2022 when this appeal came up for hearing.
From the manner the Appellant’s counsel went about arguing his appeal one will see clearly that issues 1-4 are all concerned about improper evaluation of evidence and wrong ascription of high probative value to exhibits C and C1, which is the document showing that the Appellant as land owners in Igbodigo have voluntarily surrendered some parts of it to the community for its development to the extent of dismissing their claim and granting the Respondents’ respective counterclaim.
Appellants’ Counsel argued that the land in dispute was founded by their progenitor Mohuneyin which was passed to them by inheritance through an unbroken clan of succession from one generation to another up to the present generation that the Appellants never donated or conceded any part of their land to any committee for sale. They tendered Exhibit A to show that their land still belong to them.
Counsel submit that the parties having agreed that the land in dispute originally belong to the claimants/Appellants’ Isowa family by their pleadings and oral evidence, the onus has shifted on the Defendants to prove that the land has been donated or conceded or transferred to the Igbodigo community land allocation and management committee that he who asserts must prove. Counsel cited Union Bank of (Nig) V. Nnoli (1990) 4 NWLR (Pt 145) pg 530-542. And Ozokpo V. Paul (1990) 2 NWLR (Pt. 133) 494.
Counsel submits that the defendants/respondents in their attempt to prove that the Isowa family has donated its land to the Igbodigo tendered Exhibits C-C1, a discreet look at which Counsel further submits does not indicate or show that any piece of land was transferred from Isowa family to the Igbodigo Community that Exhibits C-C1 did not set up any land allocation and management committee but only a community committee set up for purpose of Town Planning but not to sell or allocate land.
No minutes of meeting where Isowa family donated its land was tendered only DW4 testified as the secretary of the said committee. He prayed the Court to invoke the presumption under Section 167(d) of the Evidence Act in respect of the effect of withholding of evidence. Nwujube V. Obienna (1991) NSCC 492.
Lastly that the document Exhibits C-C1 was written in Yoruba the person who translated it into English was not called to testify. This is fatal. See Damina V. State (1995) 8 NWLR (Pt. 415 546.
That DW5 under cross-examination said that the land in dispute belong to the claimants. This evidence counsel said amounts to evidence against interest. He also cited paragraphs 5e and 6 of the statement of defence at page 15 of the records.
Learned Counsel submits that if the trial Court had done a proper evaluation of the evidence he would not have dismissed the Appellants’ claim especially reliefs A & B in the Writ of Summons. He also invited us to examine the testimony of DW1, DW4 and DW5 and Exhibit A.
The Learned Counsel recounted the relief sought by the 1st Respondent while arguing issues 4 and submitted that the relief is asking for a declaration that the land is belonging to Igbodigo community and not any of its component units. But the community is not a party to the suit so cannot enjoy any declaratory relief it did not seek before the Court.
Assuming the community is represented by the respondent, the Appellants’ Counsel submit that the defendants have failed to prove the root of their own title in that Exhibits C-C1 which they claimed was the document used in transferring the Appellants’ title to the community did not support their claim.
Submits “that Exhibits C-C1 is a document made by the two families for the purpose of town planning of the Igbodigo community and not to transfer any title to the land to the Igbodigo community for sale to people.”
Submits further the 2nd Defendant traced his title to the Igbodigo community land allocation committee meaning he is relying on that as his root of title, he pleaded at paragraph 6 and 7 of his Statement of Defence that he has a Certificate of Occupancy and Survey Plan but failed to tender it before the Court, which means he has failed to prove whether the Certificate of Occupancy was ever made. Counsel therefore urge this Court to invoke Section 167(d) of the Evidence Act that if the 2nd defendant had tendered the document, it would have been unfavourable. See Federal Mortgage Finance Ltd. V. Ekeo (2008) ALL FWLR (PT. 248) 1667 at 1684.
The Appellants’ Counsel contended most vehemently that since the Respondent introduced the issue of the two families ceding and relinquishing part of their respective lands to the community, it is the duty of the Respondent to strictly prove it.
Certainly, the question of whether the Appellants have conceded their land to the Igbodigo community vide Exhibit C-C1 is the bone of contention in this appeal. Therefore, the probative value and legal effect of Exhibit C-C1 will resolve the dispute between the parties. This is so because clear examination of the case of the Respondent seems to be in agreement with the fact that in Igbodigo the land consisting therein belongs to the Isowa and the Aritimehin families.
To answer the challenge posed by the Appellants, the Respondents made effort at proving the assertion that both Isowa and Aritimehin families did actually agree to cede and ceded their land to the community. They led evidence through DW1, DW2, DW3 and DW4 and DW5. They also tendered some documents including Exhibit C and C1 which is the Yoruba and English translated version of the document evidencing agreement involving the two land owning families in Igbodigo to the community. Their English version reads:
“IGBODIGO COMMUNITY COMMITTEE
An arrangement within Igbodigo community between the two families making up the community, namely: Aritimehin and Ishowa families. The two aforementioned families agreed on the constitution of a Ten man committee to see to the development of the community for the interest of the families. The committee is equally saddled with the responsibility of ensuring that people who build houses do so according to community specifications; and that whosoever wants to build a house should consult with them so that they do not construct houses that may inhibit access to the streets, and that those appointed should give tenants allocation papers without collecting any fee from them. So that the community would know that they are discharging their duties.
The names of the heads of the two families are: Chief Aburahamu Oneaiyeju Ogungbemi Aritimehin and Chief Obadia Domu Akinde Ishowa. The names of those appointed are as follows: (1) Mr. Gabriel Olowodasa – Chairman (2) Chief Luwoye Arogun – Vice Chairman (3) Mr. C. O. Monehin (4) Omotola Aribo (5) Shadaick Emaiye (6) Elikanah Aiyeku (7) Olatunji Osanyemi – Secretary (8) Mathew Akindele – Assistant Secretary (9) Ayo Akindele (10) D. Akinjulerun
Signed
Chief Aburahamu Oneaiyeji Ogungbemi Aritimehin
R.H.T.
Chief Obadia Domu Akinde Ishowa
Signed
Oba W. A. Adun Obagberume of Igbodigo”
3-1-59”
From their pleadings and the evidence rendered by their witnesses before the trial Court and submission of Respondents’ Counsel the following emerged as the Respondents’ own case, that the entire land in dispute belongs to the Igbodigo community under the headship of the 1st defendant.
Respondents says that the land forms part of the larger land collectively owned and set aside by the entire Igbodigo community (kingdom) during the reign of the defendant’s predecessor in office – late Oba W. A. Omoge for Igbodigo community’s urban development.
That the late Oba W. A. Omoge ascended the throne in 1944 and it was shortly after that that the entire Igbodigo kingdom collectively decided to move from the old Ugbodigo at Okitipupa/Erinse road to the present Igbodigo at Okitipupa Igbokoda road.
The Igbodigo Kingdom i.e. the Aritimehin and Plaintiff’s Isowa families came together and jointly took the said decision which was one of the ways/means through which the present Igbodigo (Okitipupa/Igbokoda road) could be urbanized.
The land area jointly marked out by the community for the said urbanization project starts from river Yewa, on Okitipupa/Igbokoda road, down to Gata (an Urhobo tenent) camp and the land is bounded as follows:
i. One side at Yewa river Okitipupa/Igbokoda road
ii. Second side Gata camp
iii. Third side by Igodan – Lisa land and
iv. Fourth side by Ayeka land.
Defendant further says that several pieces of land either originally belonging to Isowa or Aritimehin families were involved in the project.
That both Aritimehin and Isowa families jointly committed part of their original family land to the said Igbodigo urbanization project which was conceived and commenced during the reign of Oba W. A. Omoge the late Obagberume of Igbodigo who himself was a member of the plaintiffs’ Isowa family.
It was also the case of the Respondents that upon the merging of the two family lands, a land management committee comprising of representatives of two families was established in 1959 and since then none of the members of the two families could claim ownership to themselves. Their land has become community land managed by the committee. And that the 2nd Respondent got his own land from the community itself.
The learned trial Judge took pains in his judgment from page 349 of the record of Appeal to page 354 analysing and evaluating the evidence of all witnesses on record taking into consideration every relevant fact and details tendered and/or adduced by the respective parties and came to the following conclusion at pages 352–353 of the record which is page 42 of the certified copy of the judgment thus:
“Flowing from the above quoted statement of the DW1 who led the Igbodigo Community to the proceeding, the following facts emerge:
(1) That two main families viz Aritimehin and Isowa own the Igbodigo land
(2) That Oba Adun the immediate past Obagberume of Igbodigo found the new Igbodigo along Okitipupa/lgbodigo Road.
(3) Upon the founding of the new Igbodigo town an area was jointly set out by both families for urban development.
(4) To allocate land in the proposed urban area, a committee made up of members of both families was set.
It is important to mention at this juncture that the delegation of the Igbodigo community to the Oba G. B. Faduyile arbitration proceeding led by Oba Ayeku (DW1) consisted of principal members of the Isowa and Aritimehin families.
While the claimants are asserting that the disputed land is the exclusive preserve of the Isowa family and have been in possession from time immemorial and farmed on it, it is the contention of the Defendant that the land belongs to the Igbodigo community and it is part of the land administered by the Igbodigo Land Allocation and Management Committee.
To establish their contention, the claimant tendered Exhibit A1. It is a judgment delivered by this Court per. Hon. Justice S. A. Ajayi on 7th December 1987 in HOK/12/85 BETWEEN High Chief O. D. Akinde AND BEATRICE AKINBINU. It is in respect of claim to ownership of a piece of land by the Isowa family which land was said to be located, lying and situate at Igbodigo. At the conclusion of trial, the Court adjudged that the land in dispute belong to the Isowa family. It is noteworthy, that the parties to the above case were members of the Isowa family. The issue canvassed therein was not whether the Isowa family own any land in Igbodigo to the exclusion of any other family or the whole community. In short, the disputants in the case were family members of the Isowa family. It is equally important to note that the subject matter of the dispute in Exhibit ‘A’ is at variance with that in the present action. The subject matter in Exhibit ‘A’ was the land which the plaintiffs claimed belonged to them (Isowa family) as against the defendant in the case-Beatrice Akinbinu. It was not a contest as to whether the land belonged to the Isowa exclusively or that the present land being disputed belong to the entire Igbodigo community. The subject matter and the issue canvassed in Exhibit “A” and the present matter is just not the same. Therefore, Exhibit ‘A’ is of no moment to the present action.
Further, I also consider the evidence of the DW2, DW4 and DW5 who testified that they were members of the claimants’ Isowa family. This piece of evidence was neither challenged nor denied by the claimants, in essence the Defendants’ witnesses; are members of the claimants’ Isowa family. The evidence of the DW3, DW4 and DW5 are on all fours with that of the DW1. Oba John Ebunola Ayeku. These members of the Isowa family testified that the late Oba W. A. Omoge ascended the throne in 1944 and it was shortly after that the entire Igbodigo Kingdom electively decided to move from Ude-Ugbodigo to Okitipupa/Erinje road to the present Igbodigo at Okitipupa/lgbokoda road. They also testified that the Igbodigo kingdom made up of Aritimehin and claimants’ Isowa families came together and jointly took the decision which was one of the ways through which the present location of Igbodigo could be urbanized. That several places of land either originally belonging to the Isowa and Aritimehin families were involved in the project. That a Land Allocation Management Committee made up of members or representatives of both families in the community was set up for the purpose of the urbanization project. That none of the two component families in the community could lay exclusive ownership claim to any part of the said land set aside for the project. That the only body that had ever been allocating part of the land set aside to strangers, families and citizens of the community is the Land Allocation/Management Committee of the Community, They all testified that the Isowa’s family had no ownership rights over the land and could not lay claim to it exclusively.
The evidence of the DW3, DW4 and DW5 who are members of the claimants’ Isowa family which evidence corroborates that of the DW1 (1st defendant) inclines this Court to believe the evidence of the defence witness particularly that of the DW1 as to the amalgamation of the family lands of both the isowa and Aritimehin families for the purpose of Igbodigo urbanization project. That a committee called Land Allocation/Management was set up by Oba Adu Omoge the predecessor of the 1st Defendant for the purpose of executing the urbanization project. That the Committee also has the responsibility of allocating the land set aside for the project. I also believe the defence witness that no family has exclusive ownership of any piece of land within the four walls of Igbodigo community land within which the disputed land constitute part of.
Flowing from the foregoing premises, this Court makes the following findings of fact:
1. That the land on which the Baptist Church was built which land abuts and forms a boundary of the disputed land by the claimants and the defendants were allocated to the Church by the entire Igbodigo Community.
2. That a Land Allocation Committee was set up by the Late Oba. W. A. Omoge to administer and allocate land in Igbodigo which committee consisted of members of both the Isowa and the Aritimehin families.
3. That the land which was disputed between the Lulaire family of Ayeka and the Igbodigos and settled by Oba G, B. Faduyile, the Abodi of Ikaleland encompasses the land the subject matter of this action.
4. The land tussle was not slugged out between the Isowa family and the Ayeka Community but between the entire Igbodigo Community and the Ayeka Community.
5. That at the inception, the land constituting the present Igbodigo Community was owned by the individual families of Isowa and Aritimehin which constitute the Igbodigo Community.
6. That the respective lands were amalgamated during the reign of Oba Adu Omoge and same set aside for the urbanization of Igbodigo Community.
7. That the land in (sic) managed and allocation made by the Land Management and Allocation Committee set up for that purpose.
8. That no family in Igbodigo including the Isowa family has exclusive ownership of any piece of land that falls within the land set aside for the urbanization project which includes the land being disputed.
Against this background, this Court holds that the Isowa family does not have the exclusive ownership of the land in dispute. It is equally held that the piece of land in question forms part of the larger piece of land owned by the Igbodigo Community and administered by the Land Management and Allocation Committee put in place to administer and allocate Igbodigo communal land. In other words, the Isowa family cannot lay claim to absolute ownership over the piece of land the subject matter of this action; same being part of the Igbodigo Community land.”
The learned trial Judge having had the opportunity of seeing and observing and listening to the witnesses who testified before him, his findings and conclusions above which in my opinion are products of proper evaluation of evidence is sound and consistent with the quality of evidence adduced at the trial both oral and documentary.
In fact, I have read and considered the content of Exhibit C-C1 and indeed all other documents before the Court I find the evaluation of evidence undertaken by the trial Judge to be quite perfect as each piece of evidence received its due probative value and that is what evaluation of evidence entails, the trial Judge examining all the evidence before him before making his findings by putting all the evidence on an imaginary scale to see which side outweighs the other. See Mogaji V. Odofin (1978) 4 SC page 91.
It is a settled principle of law that the trial Court, which alone has the unique privilege of seeing and hearing the witnesses testify that has the primary function of appraising and ascribing probative value to the evidence presented by parties, make necessary findings of facts, and apply the relevant law to those facts and come to the logical conclusion. See Anyanwu & Ors. V. Uzowuaka & Ors. (2009) LPELR 515 (SC)
The learned trial Judge has done this task admirably well. This Court has not seen any reason to disturb his findings.
With respect to the identity of the community land which Appellants says was not proved before the trial Court granted the relief in favour of the Respondents it is very clear that all the parties in this case know the land in dispute and in fact its identity was not made an issue at the trial.
The position of the law is trite that where the identity of the land in dispute is not in issue between the parties, no onus naturally lies on a claimant for declaration of title to such land to prove its identity as that fact is not in issue between the parties in the suit. See Kyari V. Alkali (2001) LPELR-1728 (SC).
Notwithstanding that the identity of the land is not in or an issue requiring proof in this matter as found by the trial Court and endorsed by this Court the 1st Respondent still went on to plead the Boundaries of the land under paragraphs 5d and 24 of the statement of defence and proceeded to lead evidence establishing clearly the four cardinal points in his testimony as well as those of the other witnesses which the Appellant’s Counsel seem to ignore by this head of his complaint. Appellant’s submission on this issue identity or boundaries of the land is otiose and goes to no issue.
On the issue of failure to call the person who interpreted Exhibit C having being made in Yoruba to English into C1 which Counsel submits is fatal, as the Court can not speculate.
This Court has held in several decided cases that English Language is the officially recognized Language of the Court. Any document sought to be relied upon by a party which otherwise is not written in English Language must be translated by the party seeking to rely upon it in evidence into the English Language. It is entirely the responsibility of the party desiring the reliance on the document to translate it to the language of the Court. Per I. T. Mohammed in Achimi Ali V. Amodu Omale Audu (2005) LPELR-11330.
It was further held that documents properly tendered for admission in evidence cannot be rejected by the Court merely on the ground that the document has been written in a language or vernacular other than English. If they are admitted, the Courts are expected and indeed obliged to look at them when it comes to evaluation of the evidence adduced.
But they cannot do so unless they have been translated into English and the translated copies put into evidence” SeeHaruna V. Bank of Agriculture Ltd. (Supra).
There is nothing prohibiting the reckoning with translated documents when the translator was not called in as a witness. It is therefore left to the discretion of the Court to ascribe the appropriate probative value to such document. In this case, trial Court has found the translated document useful and applied its effect.
In other words, the failure to call the person who translated a document from another language to English Language as a witness will not nullify the English translated version it will only go to affect the weight to be attached to it; having regard to the circumstance and of each case.
Come to think of it in this case even if Exhibit C and C1 are not there, the oral evidence adduced by the Respondent from his own witnesses most of whom are the members of the Isowa family (same family) as the Appellant (DW2, DW3 and DW5) has provided sufficient oral, documentary and indeed other pieces of evidence to sustain the verdict of the lower Court one such vital evidence is Exhibit E which is the (proceedings, findings and judgment) of a Customary Arbitration given in favour of the Igbodigo community in a dispute involving the community and Ayeka – another neighboring community which decision undisputedly tallies with the position of the Respondent’s that the land is for the community, coupled with the evidence of other acts of ownership and possession carried out by the Igbodigo community on the land over time like selling, gifting and alienating some portions of the land where important monuments like Churches and other buildings are constructed at the instance of the community some of which are even been used to describe the Boundaries of the land; Without any challenge, so with or without Exhibit C-C1 there is on record sufficient evidence in support of the decision of the trial Court.
The next question is whether the trial Court had declared title in favour of the Igbodigo Community Land Allocation Committee which is not a party in this Suit as argued by the Appellant.
Note that the 1st Defendant was described by the Appellant under paragraph 3 of the statement of claim as “Traditional ruler of Igbodigo Kingdom”
The 1st Defendant in paragraph 19a of his statement of defence avers that the land belongs to the Igbodigo community and not any individual family not even the defendant, though he is the head of the community.
The 1st Defendant avers in paragraph 2 of his statement of defence that he was acting for himself and on behalf of the Igbodigo community. He did not ask for a declaration of title either for himself or for the community in his entire counter-claim rather he only asked for a mere declaration that the land so comprised lying and situate within the Igbodigo kingdom belongs to the community and not to any of its component units
In this judgment, we have since accepted the findings and conclusions of the trial Court that the land in dispute belongs to the Igbodigo community and not to individual member whether Isowa or Akintimehin families. It is clear from the orders of the trial that the Court issued at the end of the trial that the Court only recognized the said facts. Looking at the entire reliefs granted by the trial Court, nowhere was title declared in favour of the community or the committee of the community. All that the Court did, which I must say is consistent with the findings of fact is to give the description of the land and reiterated its recognition of the right of the community and above any of its component family/units in terms of the counter-claim Learned Trial Judge did not declare title to community which is not a party in the matter.
There is no merit on the Appellants’ contention here as well.
The last issue for determination – issue no. 5, Appellant asked whether the defendants/Respondents’ statement of witnesses on oath is competent. The Counsel submit that there is no competent witness statement on oath accompanying the statement of defence and the counter-claim of the 1st and 2nd Respondents in proof of their defence and counter-claim.
The Appellants’ Counsel argument is that the Respondents’ statement on oath of their witnesses did not contain the words prescribed under the 1st Schedule to the Oath Act of 2004 which goes thus:
“I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provision of the Oath Act.”
Instead, the Deponent used the following words in their statement of Oath:
“I Deposed to this statement in good faith”
This Counsel submits is not within permissive rule of substantial compliance. It is in serious contravention of Section 13 of Oath Act as contained in the 1st Schedule and that Order 3 Rule 2(i)(c) of the Rules of the High Court Ondo State prescribe a written statement on Oath.
It is pertinent to state that the Appellants’ complaint is not alleging that the statement on Oath of the Respondents’ witnesses was made without Oath but rather that the Oath therein embodied is not in exact words as laid down by the 1st Schedule to the Oaths Act.
This Court has held in APGA & Anor. V. Dantong & Ors. (2011) LPELR-9233 (CA) as per Ogunbiyi, JCA:
“Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purpose of the enactment by reason only of the difference, if the difference is not in a material particular and is not calculated to mislead.”
See Section 23 of the Interpretation Act.
The Supreme Court also pronounced in Buknor Maclean V. Inlaks (1980) 8-11 SC 1 thus:
“As a general rule, forms to schedules in statutes are inserted merely as examples and guides and are meant to be followed impliedly only so far as circumstances permit.”
From the foregoing authorities, the judicial interpretation given to the rule is to the effect that mere failure to comply in exact terms of formats in schedules to an enactment does not necessarily invalidate the things done. The Appellants in this case at hand have not asserted or shown that the Oath contained in the statement of DW1, DW2, DW3, DW4 and DW5 who infact are the entire witnesses paraded by the Respondents, is calculated to either deceive or that they are deceived or misled thereby. You must however differentiate a statement made without oath and one made with irregular format.
The substantive provision of Section 4(2)(a-c) of the Oaths Act has cured every defect associated to form, in respect of Oaths taken or affirmation administered on anyone.
Subsection (2) of the Section provides:
“No irregularity in the form in which an oath or affirmation is administered or taken shall:
a. Invalidate the performance of official duties;
b. Invalidate proceedings in Court;
c. Render inadmissible evidence in or in respect of which an irregularity took place in the proceeding.”
The subsequent affirmation or Oath of the witnesses in open Court before they adopted the said statement would serve to cure the irregularity. See Udeagha & Anor. V. Omegara & Ors. (2010) 11 NWLR (PT. 1204) 168 at 195.
The defect highlighted by the Appellant with due respect is only as to form, it does not affect the substance of the witness statement on Oath of those witnesses so that defect stands cured by the above provision.
The issue like the earlier ones is equally resolved against the Appellant.
The entire appeal totally lacks merit and it is hereby dismissed. The judgment of the Ondo State High Court in Suit No: HOK/60/2008 delivered on 10th June 2015 is hereby affirmed.
Cost of N100,000 is awarded against the Appellant.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, YUSUF ALHAJI BASHIR, JCA; in this appeal.
My learned brother has meticulously dealt with all the issues raised in this appeal and I agree with the reasoning and resolution of the said issues by his Lordship as well as the conclusion that the appeal is lacking in merit. I have nothing to add to the said leading judgment by way of contribution.
Accordingly, I too find the appeal to be without merit; and I dismiss the same. The judgment of the lower Court delivered in Suit No. HOK/60/2008 delivered on 10/6/2015 is upheld by me. I abide by the order as it relates to costs made in the leading judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Yusuf Alhaji Bashir, JCA His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.
The complaint of the Appellants in this appeal is against the evaluation of evidence carried out by the lower Court. It is settled law that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu vs Macjob (2015) 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353.
It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551.
Thus, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark of a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26,Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92.
The case of the Respondents, and which the lower Court upheld, revolved partly around the contents of a document, the Yoruba and English versions of which were tendered as Exhibits C and C1. Counsel to the Appellants contended that the lower Court was in error in giving probative value to the English version of the document when the person who interpreted and authored the said translation was not called to testify. Reading through the pleadings of the parties and notes of evidence taken at the lower Court, nowhere therein did the Appellants challenge the existence of Yoruba version of the document or the making of the document, or its contents and/or its authenticity and it was not their case that the English translation was not a proper representation of the Yoruba version. Thus, the calling of the person who Interpreted and authored the said translation would only have been for the purpose of tendering the documents, and not for cross-examination to contest its contents or authenticity.
The law is that the personal presence of the person who interpreted and authored the said translation can be dispensed with in such circumstances – Magaji Vs Nigerian Army (2008) 8 NWLR (Pt 1089) 338, Iniama Vs Akpabio (2008) 17 NWLR (Pt 1116) 225, Emesiani Vs Emesiani (2013) LPELR 21360(CA), Statoil Nig Ltd Vs Inducon (Nig) Ltd (2014) 9 NWLR (Pt 1411) 43. Speaking on when it is necessary to call the maker of a document, the Supreme Court in G Chitex Industries Limited Vs Oceanic Bank International (Nig) Ltd (2005) LPELR 1239(SC) said thus:
“Where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document, otherwise no weight should be attached to it”
In Sunday Vs Federal Republic of Nigeria (2018) LPELR 46357 (SC), the Supreme Court took time to explain this point thus:
“Again on the complaint on the failure on the part of the prosecution, now respondent, to call the recorder of the statement I think it is only fair to bear in mind and appreciate the fact that the trial Court in this appeal conducted short summary trial since the appellant’s right from the outset admitted committing the offence he was charged with. Immediately after his arrest he confessed committing the crime and chose to make a voluntary confessional statement i.e. Exhibit A. Moreso, the appellant never pleaded illiteracy as I stated earlier. Similarly, when arraigned before the trial Court, he still maintained his earlier stance by pleading guilty to the charge when same was read and explained to him, It was therefore not a full-blown trial in which host of witnesses need to be called. The appellant was represented by a counsel of his choice in this instant case.
It is pertinent to state, even at the peril of being repetitive, that the proceeding in this case at the trial Court was conducted under “Short Summary trial Procedure,” given the fact that the present appellant right from the outset, admitted committing the offence vide the voluntary confessional statement he made to the men and officers of NDLEA which said statement was subsequently tendered and admitted in evidence at the trial as Exhibit A in the presence of his defence counsel without any objection when he was arraigned before the trial Court. The appellant, as an accused thereat, admitted committing the offence he was charged with in tandem with his voluntary confessional statement (Exhibit A). The challenges or attacks on the confessional statement arose only at the Court below. It is therefore not an issue or case of “retracted confession” since the appellant had never testified in the case. All the challenges posed by the learned counsel for the appellant did not relate to want of voluntariness of this confession due to either duress, promise, torture or inducement applied by the investigator(s) of the case or the non-calling of either any interpreter or the recorder of such statement which would have obviously rendered the statement inadmissible…
Thus, the appellant herein, having clearly and unequivocally pleaded guilty to the charge when same was read and explained to him in open Court before his counsel and also having earlier voluntarily made a confessional statement in the case and also having admitted having been found in possession of the substance in question which was confirmed to be Indian Hemp or cannabis sativa which the government chemist had also confirmed to be same after conducting analysis, the trial Court was right in convicting him as charged. The Court below was also correct in affirming the finding, conviction and sentence of the appellant by the trial Court. The alleged failure on the part of the prosecution/respondent, to call the recorder or interpreter of the statement to testify is not fatal to the prosecution’s case at all, as that is immaterial from the surrounding circumstance of this instant case since there was no evidence regarding his illiteracy and also in view of the appellant’s plea of guilty in Court to the charge.”
In Onyekwuluje Vs Animashaun (2019) LPELR 46528(SC), the Supreme Court reiterated that the failure to call the maker of the document in issue in the case was fatal because the validity and authenticity of the document was a material and essential issue in the case. The lower Court thus did nothing wrong in according the English translation of the document full probative value, without the person who interpreted and authored the said translation having been called to testify, in the circumstances of this case.
Counsel to the Appellants also raised the issue of the competence of the written deposition on oath of the Respondents and asserted it was not in compliance with the provisions of Section 13 of Oaths Act. This issue was not raised or canvassed by Counsel to the Appellants in the lower Court either in the course of trial or in his final written address. It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court – Ashakacem Vs Asharatul Mubashshurun Investment Ltd (2019) LPELR 46541 (SC), Governor of Imo State Vs E.F. Network (Nig) Ltd (2019) LPELR-46938(SC).
It is a firmly established principle of appellate Court practice that a party must be consistent in the case he presents and he is not allowed to improve on his case on appeal or to present a case different from what he placed before the trial Court – Igboke Oroke Vs Chuku Ede (1964) N.N.L.R, 118 at 119-120, Nwokoro Vs Onuma (1999) 12 NWLR (Pt 631) 342, Asaboro Vs Pan Ocean Oil Corporation (Nig) Ltd (2017) 7 NWLR (Pt 1563) 42, Nyame Vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1772) 289, Ararume Vs Ubah (2021) 8 NWLR (Pt 1779) 511.
Thus, parties are not allowed to canvass on appeal an issue that was not raised by the party on his case before the lower Court – Adeleke Vs Oyetola (2020) 6 NWLR (Pt 1721) 440, Eweje Vs O.M. Oil Limited (2021) 4 NWLR (Pt 1765) 117. This point was succinctly made by the Supreme Court in the case of Idufeko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
“It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”
Where a party seeks to canvass on appeal an issue that was not raised or canvassed before the lower Court, he must seek for and obtain leave of that Court before raising it as a fresh issue, otherwise, the appellate Court will not be competent to entertain the issue – Nidocco Ltd Vs Gbajabiamila (2013) 14 NWLR (Pt 1374) 350, Nigerian Bottling Company Plc Vs Ubani (2014) 4 NWLR (Pt 1398) 421, Society Bic SA Vs Charzin Industries Ltd (2014) 4 (Pt 1398) 497, Kiwo Vs State (2020) 7 NWLR (Pt 1722) 164. It was in the amended notice of appeal filed on the 11th of February, 2021 and deemed properly filed by this Court on the 25th of November, 2021 that the Appellants raised this Issue for the first time. In the motion by which they sought to amend the notice of appeal, i.e. motion dated 28th of June, 2021 and filed on the 29th of June, 2021, and which this Court granted on the 25th of November, 2021, what the Appellants prayed for was leave to file and argue an additional ground of appeal and not leave to raise a fresh issue in the appeal. The two prayers are not synonymous and one does not suffice for the other.
Moreover, it is settled law that where a party objects to the competence of an affidavit or a deposition made on oath by his adversary either by reason of its form or otherwise, he must take the objection at the time the affidavit or deposition is being put to use in the trial Court by filing a formal objection or orally. Where he fails to do so and the affidavit or deposition is put to use and relied upon by the trial Court in making its findings, he cannot be heard to complain on appeal about the competence of the affidavit or deposition -Majekodunmi Vs Ogunseye (2017) LPELR 42547(CA), Maigadaje vs Sulei (2018) LPELR 46504(CA), Pam vs Incorporated Trustees, The Assemblies of God, Nigeria (2020) 14 NWLR (Pt 1745) 393 at 411 F-G, Obanigba Vs Abibu (2021) 3 NWLR (Pt 1762) 84. Thus, the issue of the competence of the statement on oath of the Respondents for non-conformity with the Oaths Act is not one that can be taken up in this Court for the first time. The issue, as raised by the Counsel to the Appellants, is incompetent and I hereby strike it out, along with the arguments canvassed thereon.
It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Ondo State, sitting in Okitipupa, delivered in Case No HOK/60/2008 by Honorable Justice S. A. Bola (as he then was) on the 10th of June, 2015. I abide by the order on costs in the lead judgment.
Appearances:
O. Lema, Esq. For Appellant(s)
Omosola Odusola, Esq. – for 1st and 2nd Respondents. For Respondent(s)