ADEWALE ALABI EBOADE & ANOR VS RAUFU OLANIYAN ATOMESIN & ANOR (1997)

ADEWALE ALABI EBOADE & ANOR VS RAUFU OLANIYAN ATOMESIN & ANOR

(1997) LCN/2758(SC)

In the Supreme Court of Nigeria

Friday, May 2, 1997


Case Number: SC.227/1990

 

JUSTICES:

MUHAMMADU LAWAL UWAIS JUSTICE, SUPREME COURT

SALIHU MODIBBO ALFA BELGORE JUSTICE, SUPREME COURT

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT

SYLVESTER UMARU ONU JUSTICE, SUPREME COURT

ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT

 

APPELLANTS

1. ADEWALE ALABI EBOADE

2. ADENIYI ADEKOLA EBOADE

(For themselves and on behalf of other members of Eboade family)

 

RESPONDENTS

1. RAUFU OLANIYAN ATOMESIN

2. SUARA OWOADE ATOMESIN

(For themselves and on behalf of other members of Atomesin Family)

 

RATIO

CONFLICT IN TRADITIONAL HISTORY

Now, I think simply put, the proposition of law relating to traditional history as decided in Kojo II v. Bonsie (supra). is that where there is a conflict of traditional history, demeanour is of little guide to the truth, and that the best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable- Per Kutigi JSC.

THE RULE IN KOJO V. BONSIE

So, clearly the rule relating to traditional history stated in Kojo II v. Bonsie (above) will only apply where the two parties pleaded traditional histories and led evidence in accordance with their pleadings at the trial. It will not apply, as in this case, where the defendants pleaded ‘settlement’ and led evidence showing a ‘grant’. The pleaded settlement on which no evidence was led would be regarded as abandoned, while evidence of a ‘grant’ which was not pleaded would be regarded as going to no issue vide African Continental Sea Ways Limited V. Nigerian Dredging Roads (1977) 5 SC 235. The rule in Kojo II v. Bonsie (supra), I believe, is not intended to be applied where one side has completely failed to put forward a traditional history capable of being tested and compared with the other side, which has pleaded and led evidence of traditional history- Per Kutigi JSC.

DECLARATION OF TITLE

In a suit for a declaration of title the onus of proof lies on the plaintiff to prove his case on a balance of probabilities and he must succeed on the strength of his own case and not on the weakness of the defendants case (see Kodilinye v. Odu (1935) 2 WACA 336; Aderemi v. Adedire (1966) NMLR 398)- Per Kutigi JSC.

 

KUTIGI, JSC. (Delivering the Leading Judgment):

The plaintiffs claims against the defendants jointly and severally are contained in para. 39 of the Amended Statement of Claim. They read as follows –

‘(a) Declaration to a Statutory Right of occupancy to that piece or parcel of land situate, lying and being at Atomesin Compound, I.n.alende, Ibadan shown on plan No. FA 2821 drawn by Mr. A O. Adebogun licensed Surveyor on 2nd February, 1983.

(b) The sum of One Thousand Naira (1,000.00) being general damages for trespass committed by the defendants, their servants and agents on the said parcel of land on 20th day of February, 1983.

(c) An order of injunction restraining the defendants, their servants, agents privies or anyone claiming through them from committing any further acts of trespass on the said parcel of land.’

The parties filed and exchanged pleadings. The defendants Statement of Defence and counter-claim contained a counter-claim in para. 41 thus –

‘Wherefore the defendants jointly and severally counter-claim against the plaintiffs for the total sum of N 1,860.00 (One Thousand Eight Hundred and Sixty Naira) being total rent admitted by the plaintiffs to have been collected from the tenants on the disputed land which is the property of the defendants and their family.’

During the trial of the suit in the High Court seven witnesses testified for the plaintiffs while four witnesses testified for the defendants.

The learned trial judge in a reserved judgment considered the case put forward by each side along with the evidence and came to the conclusion that on the balance of probabilities, the plaintiffs proved their case and were entitled to succeed. The defendants counter claim failed and was dismissed. He concluded his judgment on pages 75-76 of the record thus –

‘Finally, I hold that the plaintiffs are entitled to succeed in this action and the plaintiffs claims are hereby allowed.

I therefore hereby declare that the plaintiffs are entitled to a Statutory Right of occupancy to all that piece and parcel of land lying and situate at Atomesin Compound, Inalende, Ibadan which is more particularly shown on plan No. FA 2021 and FA 11,550 and tendered as Exhibits C and D in this action.

I also hereby award a sum of N600.00 (Six hundred naira) being general damages for trespass committed by the defendants on the said land on the 20th day of February, 1983.

I also make an Order of Injunction restraining the defendants, their servants, privies or anyone claiming through them from committing further acts of trespass on the said land.

The counter-claim filed by the defendants fails and is hereby dismissed.’

Aggrieved by the decision of the High Court the defendants appealed to the Court of Appeal holden at Ibadan. The appeal was unanimously dismissed with costs against the defendants.

Still not satisfied with the judgment of the Court of Appeal the defendants have now further appealed to this court.

In compliance with the Rules of Court, the parties filed and exchanged briefs of argument. These were adopted at the hearing. Chief Adepoju, Learned Counsel for the defendants has in his brief, submitted four issues for determination in this appeal as follows –

‘I. Whether the Court of Appeal was right in holding that the trial Judge did not fall into error in the manner in which he proceeded to resolve the conflict in traditional history before him.

2. Whether the plaintiffs could bring an action in the name of Atomesin family for title to land without joining the said Atomesin family as a party when the plaintiffs are not related to the said Atomesin family.

3. Whether the trial Judge had correctly appraised the evidence and whether the Court of Appeal was right to have upheld the decision of the trial court when findings of the trial court are not supported by the evidence .led by the plaintiffs to prove their case.

4. Whether it was not necessary for the trial court to have visited the locus when neither the trial court nor the Court of Appeal found in their judgments any defined physical features of the area of the land in dispute.’

Issues (I) & (3) will be treated together while issues (2) & (4) will be taken separately thereafter.

Issues (1) & (3) ,

Defendants counsel submitted that watching both parties in the witness box and relying on such observations to decide conflict in traditional evidence is not the correct approach. That the proper approach once the court recognised that there were conflicts in the traditional histories of the parties was to resolve the conflicts in the light of recent facts established by evidence before it and not by proceeding to prefer the evidence of one party to the other on the basis of demeanour of witnesses as the High Court had done in this case and confirmed by the Court of Appeal. He referred to page 71 of the record lines 5 – 9 and the cases of –

Kojo & Anor v. Bonsie (1957) 1 WLR 1223

Adeyemo v. Popoola (1987) 4 NWLR (Pt. 66) 578

Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 S.C. 1

He said failure by the trial court to properly apply the test as laid down in Kojo II v. Bonsie(supra) has occasioned a miscarriage of justice.

It was also submitted that the judgment of the learned trial Judge did not demonstrate in full or at all a dispassionate consideration of the issues properly raised and neither did it reflect the result of such an exercise. That it was not enough for court to say that it believed or disbelieved the witnesses without a proper evaluation of the evidence and that if it had done so it would have been clear that the plaintiffs did not prove their title to the land in dispute more especially when the identity of the land was not proved. That the plaintiffs and their witnesses contradicted themselves on material facts and that the Court of Appeal ought to have allowed the appeal. He referred to the case of Ozigbe & Ors v. Chief Aigbe & ors (1977) 7 SC 1.

Chief Akande learned counsel for the plaintiffs on the other hand, submitted that the trial High Court was right in its approach to the traditional history led by the parties before it. That the learned trial Judge appraised the evidence on both sides and found the evidence led by the plaintiffs more plausible. The Judge also clearly did not believe the traditional history of the defendants and he gave his reasons particularly when the defendants according to their pleadings pleaded settlement but gave evidence of a grant. He referred to the judgment on page 71 of the record lines 4 – 25. It was also submitted that the learned trial Judge having accepted the traditional history of the plaintiffs ought to have stopped there without any further reference to acts of possession of ownership by the parties even though the plaintiffs still won. He cited the cases of Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 322; Abudulai v. Manue (1944) 10 WACA 172; Thomas v. Holder (1946) 12 WACA 78. He said the Court of Appeal was therefore right in confirming the judgment of the trial court having found that the judgment was fully supported by evidence and that there was nothing done against the rule in Kojo.& Anor v. Bonsie (supra).

It was further submitted that the learned trial Judge properly evaluated the evidence on both sides in this case and also applied the relevant laws as well. He referred to pages 65 – 72 of the record. That since it is not the law for the Court of Appeal to substitute its own views for that of the lower court which had properly reviewed and evaluated the evidence before it, the Court of Appeal in this case was right to have affirmed the judgment of the trial High Court. We were referred to Akinloye v. Eyiyola (1968) NMLR 92, Awoyale v. Ogunbiyi (1985) 2 NWLR (Pt. 104 SC 9R. and Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22 at 34. He also said that the defendants who pleaded settlement but who gave evidence of a grant only qualified to have their case dismissed as was done in the trial court.

Now, I think simply put, the proposition of law relating to traditional history as decided in Kolo II v. Bonsie (supra). is that where there is a conflict of traditional history, demeanour is of little guide to the truth, and that the best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.The plaintiffs in their Amended Statement of Claim pleaded in para. 6 that –

‘The land in dispute verged red on plan No. FA 11,550 and forms part of a larger area of land settled upon by one Asumo, the ancestor of the plaintiffs about 200 years ago.’

The defendants also in their Statement of Defence and Counter-Claim pleaded in para. 7(a) thus –

‘One Iyiola, an Oro Worshipper who was the defendants great grand father and a warrior left Ika near Iroko, Oyo Road, Ibadan to settle at Oke Oloro, Sapati, Ibadan where he begat Adekunbi and Akinlotan.’

They had pleaded in para. 6(a) that:- ‘The piece or parcel of land in dispute is part of a large tract of land owned and continuously and undisputably possessed by Eboade Iyiola family and situate at Eboade Iyiola Compound, Inalende, Ibadan for over 200 years ago.’

It is therefore doubtless that both sides in this case pleaded settlement as their root of title.

In his evaluation of the evidence led by the parties the learned trial Judge had this to say on page 68 of the record –

‘The plaintiffs in this matter traced their root of title to one Asunmo who they described as their ancestor and original owner of the land in dispute. They also narrated how the land got into possession of his descendants………………….

And on page 69 he continued thus –

‘On this issue, the defendants testified that one Adekunbi who was their ancestor once lived with one Okebukola who was the original settler on the larger piece of land including the land in dispute. The 2nd defendant narrated how his ancestor settled at Aiyesome now called Inalende. The 1st witness for the defendants, one Joseph Olutayo Okebukola who claimed to be the son of Okebukola testified that his father granted the land in dispute to the family of the defendants. He said further that One Ojo Atomesin, one Olukanmbi, one Atori and one Eboade came to settle at Inalende with his father. He said his father granted the land to Eboade. Eboade according to the 2nd defendant was a son of Adekambi. One would see straight away that the evidence of 2nd defendant and ,that of 1st defendant witness on the point of how the land was ,acquired by the Eboade family as well as to whom the grant was made is conflicting. The 2nd defendant said Adekambi settled on the land and he gave birth to Eboade and his other children there; while the 1st defendants witness said that the land was granted to Eboade……………………………. ‘

So, clearly the rule relating to traditional history stated in Kojo II v. Bonsie (above) will only apply where the two parties pleaded traditional histories and led evidence in accordance with their pleadings at the trial. It will not apply, as in this case, where the defendants pleaded ‘settlement’ and led evidence showing a ‘grant’. The pleaded settlement on which no evidence was led would be regarded as abandoned, while evidence of a ‘grant’ which was not pleaded would be regarded as going to no issue vide African Continental Sea Ways Limited V. Nigerian Dredging Roads  (1977) 5 SC 235. The defendants never amended their pleadings throughout the trial as they should have done. The rule in Kojo II v. Bonsie (supra), I believe, is not intended to be applied where one side has completely failed to put forward a traditional history capable of being tested and compared with the other side, which has pleaded and led evidence of traditional history.

It is settled that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. The learned trial Judge accepted the evidence of traditional history led by the plaintiffs and rejected that of the defendants who as I said based their root of title on settlement. while the case presented at the trial was one of a grant of the land in dispute. On page 71 of the record the trial court observed – and this is what is being attacked now:

‘Watching both parties in the witness box, I find easier to believe the evidence of the plaintiffs and their witnesses. The evidence of the 2nd defendant and the defendants were tainted with lies and exaggerations. The evidence of the 1st defendants witness is unreliable. Those of the 2nd and 3rd defendants witnesses are manifestly unreliable. In fact, I had to warn both of them during the proceedings. For example, the 2nd witness for the defendants testified that the land in dispute was never used for anything. Immediately he changed his testimony and said that members of the defendants family were trading on the land before a house was built on it. This is contrary to the testimony of the 2nd defendant himself.

The 3rd defendants witness who like the 2nd claimed to be boundary man of the defendants also testified that the land in dispute was never used as a market.

On the balance of probabilities, I hold that the plaintiffs story about the title of their ancestors is more plausible and I hold that Asunmo their ancestor was the founder of the compound now known as Atomesin Compound.’

So that although the defendants and their witnesses were disbelieved, the learned trial Judge gave his reasons for doing so. That was as it should have been. I think he was right. I have also, like the Court of Appeal, perused the record and I am satisfied that the learned trial Judge fully appraised and gave probative value to relevant evidence before making his findings and coming to the conclusion which he reached. In a suit for a declaration of title the onus of proof lies on the plaintiff to prove his case on a balance of probabilities and he must succeed on the strength of his own case and not on the weakness of the defendants case (see Kodilinye v. Odu (1935) 2 WACA 336; Aderemi v. Adedire (1966) NMLR 398). And I must say that I agree with the submission of Chief Akande for the plaintiffs, that 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 then non-issues. (See Fasoro & Anor v. Beyioku & Ors (1988) 2 NWLR (Pt. 76) 263. Balogun v. Akanji (1988) I NWLR (Pt. 70) 301). Therefore in this case where the two sides each pleaded settlement as its root of title the learned trial Judge having found that the plaintiffs proved their radical title to the land in dispute, needed not to have gone further to consider acts of ownership or possession by the parties at all.

Issues (1) & (3) are therefore resolved against the defendants. Issues (2)

 

COUNSELS

Matthew Ade Adepoju (with him, Matilda Ade Adepoju (Miss)) – for the Appellants

Chief O. Akande -for the Respondents.

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