ADEYEMO & ORS v. BUSARI & ORS
(2022)LCN/16058(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Monday, July 25, 2022
CA/AK/198/2016
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. ALHAJI RAFIU ADEYEMO 2. ALHAJI TAJUDEEN ADEYEMO 3. ALHAJI ISIAKA ADEYEMO APPELANT(S)
And
1. MR. AUGUSTINE BUSARI 2. MR. PHILLIP AJAYI BUSARI 3. MR. LEKAN ADEDEJI 4. MR. GBELE OYEYINKA 5. MADAM AOLATU KARIMU RESPONDENT(S)
RATIO
DEFINITION OF TRESPASS TO LAND
Trespass to land means any unjustifiable interference with land in the possession of a party. It constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. See … It is settled law that every person in exclusive possession of land can bring an action for trespass against any person other than the true owner or a person with a better title in respect of any interference with his possession. Therefore, for a plaintiff to succeed in an action for trespass, he must establish exclusive possession of the land at the material time. See … PER LOKULO-SODIPE, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES
It is trite law that burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See …
In civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Parties in civil suits must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party a (sic) fails to discharge this burden then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case. A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeeds (sic). See …
In line with the above principle of law and evidence adduced by the parties, more importantly, the plaintiffs can one say that plaintiffs discharged the burden placed on them by law?
It is clear and trite that only a person in actual possession of land can sue for trespass in respect of such land. The plaintiffs through their own evidence showed clearly that they were not in actual physical possession of the land in respect of which they sued for trespass. Rather, they succeeded in establishing before the Court that there were tenants on the land who were in actual physical possession of the land. It would have been another case entirely if those tenants sued for trespass and call the present set of plaintiffs as witnesses. See … PER LOKULO-SODIPE, J.C.A.
WAYS OF PROVING OWNERSHIP OF TITLE TO LAND
The methods of proving ownership of/to land have long been settled and remain sacrosanct till the present day. For the said methods, see the case of IDUNDUN V. OKUMAGBA (1976) LPELR-1431 (SC) wherein it was pointed out by the Supreme Court that there are five ways in which ownership of/to land may be proved. These are: –
1. Ownership of land may be proved by traditional evidence;
2. Ownership of land may be proved by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents 20 or more years as at the date of the contract;
3. Acts of the person or persons claiming the land such as selling, leasing or renting out all or part of the land or farming on it or on a portion of it provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of the land may be prima facie evidence of a particular piece or quantity of land with reference to which such acts are done. Such acts of long possession in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence. Moreover, under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more or cannot stand when another proves a good title;
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land may be the owner of the land in dispute.
The position of the law as enunciated above, has consistently been maintained over the years (hence the use of the word sacrosanct before now); and in the case of AJIBOYE V. ISHOLA (2006) LPELR-301(SC) the Supreme Court made it clear that there is a distinction between the five settled and sacrosanct methods of proving ownership/title to land and mode of acquisition of title to land. That the mode of acquisition of title to land may be by: –
a. first settlement on the land and deforestation of the virgin land;
b. conquest during tribal wars;
c. gift;
d. grant – customary;
e. sale;
f. inheritance; etc. PER LOKULO-SODIPE, J.C.A.
THE INGREDIENTS FOR A VALID CUSTOMARY ARBITRATION
A decision by a Court of competent jurisdiction creates an estoppel per rem judicatam but an award by a customary arbitration will have the same consequence if certain pre-conditions are satisfied. These are distilled in a plethora of decisions of this Court, see … From the principles enunciated in these decisions, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:
1. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
2. that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;
3. that the arbitration was in accordance with the custom of the parties or of their trade or business;
4. that the arbitrators reached a decision and published their award and;
5. that the decision or award was accepted at the time it was made. See …” PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 25/2/2016 by the High Court of Osun State presided over by C.D. Afolabi, J. (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively). The claims of the Appellants as plaintiffs at the lower Court as set out in paragraph 37 of the statement of claim dated 5/1/2010 and filed on 7/1/2010 read thus: –
“(a) The sum of N100,000.00 (One Hundred Thousand Naira) being general damages for trespass committed by the Defendants, when they unlawfully broke and entered into the Plaintiffs’ family piece or parcel of land situate, lying and being at Aje, Alahun Aje Village, Ikire, Osun State, which is in the exclusive possession of the Plaintiffs (sic) family and which trespass still continues.
(b) Perpetual Injunction restraining the Defendants, whether by themselves, their servants, workmen, agents, privies (sic) and/or any of them or otherwise however be restrained from entering into or committing further acts of trespass on the Plaintiffs’ family landed property.”
The Respondents who were sued as defendants filed a statement of defence on 17/6/2010 and after setting out facts apparently in defence to the statement of claim, stated in paragraph 56 of the said statement of defence thus: –
“WHEREOF the Defendants Counter-Claim as follows:
i. A Declaration that the Defendants are entitled to the Customary Right of Occupancy of the land at Aje, Alahun Village, Ikire, Osun State
ii. The sum of Two Million Naira only for the SPECIAL AND GENERAL DAMAGES for TRESSPASS committed by the Plaintiffs when they invaded the Defendants (sic) Farmland lying situate and being at Aje Alahun Village, Ikire Osun State on 17th April, 2006 and also proceeded to damage the Defendants food and cash crops and permanent economic trees such as Cocoa tress, and Economic tree (sic) such as Iroko tree, Oro tree and other Crops thereat.
iii. AN ORDER OF INJUNCTION restraining the Plaintiffs, servants, agents, Privies from committing further acts of trespass into the Farmland of the Defendants situate at Aje Village, Ikire Osun State and bounded on each side as follows:
Front Side by Akinboro Atoba Farmland
Back side by Ojo Adeyemi & Gbokunde Farmland
Left Side by Ojediran Farmland
Right Side by Salami Adegbite Farmland
The case of the Appellants upon their pleadings is that they are principal members of the Konigbagbe section of the Molaja family and the land in dispute which forms part of a larger portion of land at Alahun Aje was originally settled upon by Aisiolu who is the ancestor of the Molaja family. That after Aisiolu died, Ajala one of his sons, and to whom Aisiolu partitioned a portion of the land situate at Alahun Aje and which comprised of the land in dispute, took over the said land. The land in Alahun Aje was partitioned between the children of Ajala upon his death and the land in dispute was allotted to Konigbagbe who before he migrated to Erummu placed his parcel of land in the care of his brother – Adewumi. That Adewumi made use of the land in dispute and made payment in the way of tins of oil to Konigbagbe. That Adewumi’s wife with the consent of Konigbagbe and her husband allowed one Ajayi Alagbigba (Igbira) to plant food crops on the land while making payments to Konigbagbe. That the said Ajayi had planted cocoa trees on the land and when confronted by Konigbagbe he stated that he would leave the cocoa trees for Konigbagbe when he (Ajayi) leaves the farm as the same belonged to Konigbagbe. Even after the death of Konigbagbe, Ajayi and Adewunmi still made payments to Bello Adeyemo, the first son of Konigbagbe. Ajayi subsequently left the land and gave Pa Mathew Adeodu permission to harvest the cocoa on the land and Adewumi with the consent of Bello gave the land to Salami Adegbite who also made payments to the Konigbagbe family. At the death of Adegbite and Adewumi, Alhaji Musa, the 1st son of Adegbite as well as his children farmed on the land in dispute and also made payments to the Konigbagbe family. That in May 2006, upon the agreement of the Konigbagbe family, some trees on the land in dispute were felled and sold to finance some family projects. That the 1st Respondent began asserting ownership of the land and the economic trees thereon and they (Appellants) also discovered that the other defendants had trespassed into the said land. It is the assertion of the Appellants that the 1st, 2nd, 4th and 5th Respondents are not related to Aisiolu, the ancestor of the Appellants. That the 3rd Respondent defendant is not from the Konigbagbe section of the Molaja family. That the Sooko of Itaakun called the parties to a meeting in order to settle the dispute and the Respondents are bound by the decision of the committee set up by the Sooko.
The Respondents’ case is that the land was apportioned to their father Chief Busari Fagbemi by Chief Awodeyi of Itaakun Ikire, Osun State who owned the same. That the 1st and 2nd Respondents are children of Busari Fagbemi the 3rd Respondent a nephew of late Chief Busari Fagbemi while the 4th and 5th Respondents are caretakers of the said land. That their father in his lifetime allowed some persons from Igbira to work on the said land and also allowed them to plant cocoa tress on the said land. Subsequently one of the said men, Ajayi Igbira informed their father that he was leaving Idi-Ogun village and that he had sold his cocoa trees on the said land to one Mathew Odumuyiwa. That their father disagreed that the cocoa tress on his farmland should be sold to the said Pa Mathew but that the said Mathew Odumuyiwa can only take the same on lease and both parties executed an agreement in this regard. That at the end of 20 years, their father agreed with Mathew Odumuyiwa that he should take care of the cocoa farmland and give him returns yearly. Their father also leased out his palm trees on the said land to some women who made returns to their father until his death and continued to do so to the Respondents even after their father’s death. That sometime in 1995 one Rafiu Olaleke and Asifat entered the Respondents’ father’s farmland to steal cocoa fruits. They were arrested and following this a truce was reached. The truce forbade Adewumi’s son and his descendants from trespassing into the said farmland. The Appellants however instructed one Azeez Adediran and others to steal from their farmland. That they (Respondents) were advised by their elder brother to report the issue to the Sooko of Itaakun for settlement but that the Sokoo’s judgment made issues worse. That they were not granted audience during the said arbitration and that one of the persons who trespassed into the land in dispute was a member of the panel arbitrating over the matter. It is the stance of the Respondents that they are not bound by the decision reached by the Sokoo’s intervention. That they having disagreed with the Sokoo’s judgment reported the matter to the Catholic Institute of Justice Development and Peace Commission but the Appellants refused to accept the letters of invitation to the said commission. The Respondents reported the Appellants to the Police and the Police advised them to take the matter to the Court, they thus initiated an action against the Appellants at the Customary Court, Ola Ale, Ikire but the suit was discontinued pursuant to an order of prohibition made by the High Court. The suit filed by them (Respondents) at the Customary Court Ako did not also proceed to a conclusion. The Appellants then initiated a suit against the Respondents but subsequently discontinued the same against them and then filed the present suit.
Having regard to the record of appeal (hereafter to be simply referred to as “the record”), the Appellants in the proof of their case, fielded 8 witnesses: PW1 – Azeez Adediran; PW2 – Oba Adefioye Ayoade; PW3 – Lateef Adebayo Animasahun; PW4 – Adedeji Ayoade Adeniyi; PW5 – Adesina Mutalubi; PW6 and PW7 who are stated in the judgment to be Lukeman Adegbite and Alhaji Rafiu Adeyemo – 1st Appellant as well as PW8 – Sergeant Adebayo George who testified on subpoena.
The following documents tendered by the Appellants were admitted in evidence and marked as Exhibits: (i) Exhibit AAA1 – Survey plan dated 9/7/2008 with plan no. OS/0327/2008/D001 drawn by PW3; (ii) Exhibit AAA2 – Document dated 9/5/2006 and titled “a report on the peace meeting conducted by Sooko of Itaakun: Oba Victor Adefisoye Ayoade (JP) on the instruction of the Divisional Police Officer Irewole Local Government amongst members of Omolaja family and invited prominents (sic) individual”; (iii) Exhibit AAA3 – CTC of letter with Ref No. F/N0187152 addressed to D.C.D Zonal C.I.D of the Nigeria Police titled “interim police report on a case of forcible entry cum stealing”; (iv) Exhibit AAA4 – CTC of statement dated 10/5/2007 made by Azeez Adediran (PW1) to the Police; (v) Exhibit AAA5 – CTC of statement of Tajudeen Adeyemo (2nd Appellant) to the Police; (vi) Exhibit AA6 – CTC of statement dated 10/5/2007 made to the Police by Philip Ajayi Busari (2nd Respondent) (vii) Exhibit AAA7 – CTC of statement in Yoruba Language made to the Police by Olalekan Adedeji (3rd Respondent); (viii) Exhibit AAA8 – CTC of statement dated 11/5/2005 made to the Police by Oyeyinka Olaniyan.
The Respondents equally fielded 8 witnesses: DW1 – Surveyor Aderemi Femi Kobiowu; DW2 – Ashiru Adebayo Awodeyi; DW3 – Idowu Olaniyi; DW4- Gbenle Olaniyan Oyeyinke; DW5 – Olalekan Adedeji (3rd Respondent); DW6 – Buraimoh Ojediran; DW7 – Aolatu Karimu; and DW8 – Philip Ajayi Busari (2nd Respondent). A survey plan dated 16/4/2010 with plan no. OY/1199/2010/04 tendered by the Respondents was admitted in evidence and marked as Exhibit APL1; while a notice of discontinuance dated 5/1/2010 and filed on 7/1/2010 in Suit No. HRE/29/2007 was admitted in evidence and marked Exhibit APL2.
Aggrieved by the judgment of the lower Court, the Appellants initiated this appeal by lodging at the registry of the said Court on 4/5/2016, a notice of appeal dated 27/4/2016. The grounds of appeal in the said notice shorn of their respective particulars read thus: –
“1. The learned trial Judge erred in law when he held as follows:
“Finally, since the plaintiffs failed to prove that they were in actual physical possession, their claims for damages for trespass and perpetual injunction fails. Consequently, Plaintiffs’ suit is dismissed in its entirety”
2. The learned trial Judge erred in law when he held as follows:
“l am however of the firm view both parties lost focus of the reliefs before the Court while fighting ferociously on what is not before the Court. They fought the case as if they were seeking for declaration of title and not an action for trespass.”
3. The learned trial Judge erred in law when he held as follows:
“Finally, on issue one, I hold that the purported customary arbitration decision contained in the Exhibit “AAA2″ is not binding on the Defendants, consequently issue one is resolved against the Plaintiffs.”
The reliefs sought by the Appellants in this appeal as stated in paragraph 4 of their notice of appeal are: (i) to allow the appeal and set aside the judgment of the lower Court; (ii) to grant their reliefs in its entirety.
The appeal was entertained on 27/4/2022 and in urging the Court to allow the appeal, learned leading counsel, Olufemi Akintomiwa adopted and relied on the Appellants’ brief of argument dated 5/5/2017 and filed on 8/5/2017 but deemed properly filed on 27/4/2022; as well as the Appellants’ reply brief of argument dated 27/7/2020 and filed on the same date but deemed properly filed on 27/4/2022. In the same vein, learned counsel, C.B. Ayog, adopted and relied on the Respondents’ brief of argument dated 21/1/2020 and filed on the same date but deemed properly filed on 27/4/2022, in urging the Court to dismiss the appeal.
The Appellants formulated 3 issues for the determination of this appeal in their brief of argument. They are as follows: –
“1. Whether the Plaintiffs/Appellants proved better title to the land in dispute most especially when the Lower Court made a finding of fact from evidence on record that the Plaintiffs/Appellants succeeded in proving that they put tenants on the land in dispute and the tenants are in actual physical possession of the land trespassed upon by the Defendants/Respondents.
2. Whether the learned Lower Court was right in dismissing the claims of the Plaintiffs/Appellants on the ground that the Plaintiffs/Appellants failed to prove that they are in actual physical possession of the land in dispute in spite of the finding of fact by the lower Court that the Plaintiffs/Appellants succeeded in proving that they put tenants on the land in dispute and the tenants are in actual physical possession of the land trespassed upon by the Defendants/Respondents.
3. Whether the lower Court was right in holding that the Defendants/Respondents are not bound by customary arbitration initiated by the Defendants/Respondents and its arbitration award.”
It is expressly disclosed in the Appellants’ brief of argument that issue 1 as re-produced above flows from grounds 1 and 2 in the notice of appeal; while “issue 2” is stated to have been distilled from ground 3.
The Respondents formulated 3 issues for the determination of the appeal in their brief of argument. Though the Respondents did not marry the issues they formulated to the grounds of appeal, the said issues are essentially the same in purport as the issues formulated for the determination of the appeal by the Appellants. The issues read thus: –
“1. Whether the Defendants/Respondents proved better title to the land in dispute most especially when the lower Court made a finding of fact from evidence on record that the Plaintiffs/Appellants succeeded in proving that they put tenants on the land in dispute and the tenants are in actual and physical possession of the land trespassed upon by the Defendants/Respondents.
2. Whether the learned trial Judge was right in dismissing the claims of the Plaintiffs/Appellants on the ground that the Plaintiffs/Appellants failed to prove that they are in actual physical possession of the land in dispute in spite of the finding of fact by the lower Court that the Plaintiffs/Appellants succeeded in proving that they put tenants on the land in dispute and the tenants are in actual physical possession of the land trespassed upon by the Defendants/Respondents.
3. Whether the lower Court was right in holding that the Defendants/Respondents are not bound by the “Customary arbitration” initiated by Defendants/Respondents and its arbitration award.”
The Appellants argued their issues 1 and 2 together and the argument of the Appellants on the said issues are from paragraph 4.1 to paragraph 4.25 on pages 3-9 of their brief of argument. The position of the Appellants in the main on the issues they argued together is that the lower Court was wrong in not finding in their favour on their claims on the basis that they were not in actual or physical possession of the land in dispute. The stand of the Appellants in this regard is informed by their claims before the lower Court and which are for damages for trespass and perpetual injunction. It is the position of the Appellants that they pleaded and led credible evidence in support of their claims before the lower Court through the 8 witnesses they called and eight Exhibits they tendered that they are the owners of the land in dispute and also in possession of same and which parcel of land they inherited from their ancestor, Konigbagbe. The Appellants submitted that the pleading of the Respondents and the porous and spurious evidence they led to establish that the land in dispute belonged to them as well as that it was their father that put tenants on the said land in dispute, was not sufficient to deny them (Appellants) of their claims. That the lower Court was wrong in holding that it was their (Appellants) tenants who are in actual physical possession that can sue the Respondents for trespass and injunction over the land in dispute. That the lower Court was wrong in relying on the cases of Oyadare vs Keji (2005) All FWLR Pt 247 1583 at 1594 and Adepoju vs Oke (1999) 3 NWLR pt 594 pg 154. It is the position of the Appellants that the correct principle of law is that a claim of damages for trespass to land is rooted in exclusive possession of the land and the standard of proof required to establish possession in an action for damages for trespass is minimum standard of proof and the case of Anyakora vs Obiakor (2005) All FWLR Pt 268 1662 at 1685 was cited in aid. It is the position of the Appellants that possession of land can either be de facto or de jure possession and that either form of possession is recognized by the law. That this being the case, they (Appellants) could have maintained the instant action against the Respondents as persons who have a right of possession/ownership and not only the tenants in actual possession. That there is no law that states that if a person with a right of “possession/owner” has put “tenant” on a land in dispute, then he cannot sue for trespass, most especially where title to the land is in issue as in this case. The Appellants urged the Court to resolve this issue in their favour. Dwelling on their issue 2 which they stated to have been distilled from ground 3, the Appellants in the main submitted that the lower Court was wrong in its conclusion in respect of the customary arbitration the Respondents initiated.
I consider it pertinent to state that the Appellants having first argued their issue 1 and 2 together, must have committed a slip in again arguing the same issue 2, as having been predicated on ground 3. I consider this to be a slip because this is not a situation in which the Appellants showed themselves as having distilled either or both of their issues 1 and 2 from a combination of the grounds of appeal in the notice of appeal that included ground 3. If this had been the situation, I would not have bothered considering the said issue 2 which deals with ground 3. This is because the Appellants in that situation would have violated the principle of law prohibiting the splitting of grounds of appeal into more than one issue.
Dwelling on the said issue 2 (which I will hereafter refer to as issue 3 for purposes of clarity), the Appellants submitted to the effect that both parties in their pleadings stated that they participated in the arbitral proceedings before the Sooko of Itaakun. That it was the Respondents who contended that they disagreed with the decision of the said arbitral panel and consequently lodged a complaint with the Catholic Institute of Justice Development and Peace Commission at Orita Bashorun, Ibadan, and also alleged that they (Appellants) were invited but failed to appear before the said Commission. The Appellants submitted that the Respondents did not place before the lower Court any document showing that indeed any complaint was lodged. That the Respondents equally did not show that they disengaged from participating in the customary arbitration when they allegedly observed that the proceedings were not favourable to them. That on the contrary, the Respondents participated in the proceedings to conclusion. The Court was referred to the statement on oath of DW8 on pages 62 – 68 of the record. Appellants submitted that parties are bound by their pleadings and further referred to paragraph 33 of the Respondents’ statement of defence and further submitted that the lower Court erred in finding that there was no fair trial at the customary arbitration as both parties were allowed to put up representations before the arbitration panel. It is the stance of the Appellants that the lower Court ought to have relied on Exhibit AAA2 as disclosing what transpired before the arbitral panel more so as that the Respondents did not challenge the said Exhibit. That there is no indication in Exhibit AAA2 to the effect that it was only the Appellants that were given audience during the said arbitral proceedings. That the findings of the lower Court to the effect that it was PW2 who set up the arbitral committee; that PW4, the secretary of the said committee, was from the Appellants’ village; and that A.O. Busari wrote a letter withdrawing his assent to Exhibit AAA2, were perverse as the same did not form part of their (Appellants) pleadings. That the lower Court ought not to have resolved the issue of whether or not the Respondents rejected the decision of the arbitral proceeding on speculation and facts not pleaded. That the lower Court’s finding that the said arbitral panel did not accord with the principles of fair hearing was based upon speculation and not on pleaded facts. It is the stance of the Appellants that the lower Court failed to appraise the evidence led by both parties relating to the customary arbitration and considered facts extrinsic to the evidence adduced by the parties. That the Appellants did not submit themselves to the Catholic Institute of Justice Development and Peace Commission at Orita Bashorun, Ibadan and any decision from the said panel cannot bind them. That any complaint to the institute does not affect the validity of the arbitral proceedings leading to the production of Exhibit AAA2 and the lower Court erred in holding that the Respondents are not bound by Exhibit AAA2 because they filed a complaint at the Institute. Appellants posited that the fact that the Respondents resiled from the customary arbitral proceedings which decision is shown in Exhibit AAA2 or that they did not accept the decision of the said panel did not form part of the pleadings of the Respondents. That the burden was on the Respondents to prove that they are not bound by the said customary arbitration. It is the stance of the Appellants that where it is shown that two parties to a dispute voluntarily submitted their dispute to customary arbitration and agreed expressly or by implication that the decision would be binding on them, they are bound by the same and once the arbitrators have arrived at a decision it would not be open to any party to resile from the decision so pronounced. In conclusion, Appellants submitted that the Respondents were bound by the customary arbitration.
As already stated hereinbefore, the issues formulated for the determination of the appeal in the brief of argument of the Respondents are the same in purport with those formulated by the Appellants. This being the case, Respondents’ issues 1 and 2 will be reviewed together.
Dwelling on these issues, the position of the Respondents in the main is that “possession” that will sustain an action in trespass should be exclusive possession. The case of “LADPO” (sic) V AJANI (1997)8 NWLR (pt. 517) 356 at 367 was cited in aid. It is the stance of the Respondents that they pleaded and led credible evidence to support the fact they are in exclusive possession of the disputed farmland. The Respondents having referred extensively to evidence in the record, submitted that the attempt by the Appellants to falsify evidence of possession before the lower Court failed and that this justified the opinion of the said Court on the issue. This Court was urged to so hold and uphold the judgment of the lower Court.
It is also the stance of the Respondents under the aforementioned issues, that the lower Court was right in dismissing the claims of the Appellants on the ground that the said Appellants failed to prove that they are in actual physical possession of the land in dispute inspite of the finding of fact by the lower Court that the Appellants succeeded in proving that they put tenants on the land in dispute and that the tenants are in actual physical possession of the land trespassed upon by them (Respondents). That the exposition on a claim in trespass by the lower Court in its judgment on appeal, justifies the conclusion reached by the said Court that “for a Plaintiff to succeed in an action for trespass, he must establish exclusive possession of the land at the material time.” That though the lower Court expressed the view that the Appellants succeeded in establishing that they put tenants on the land trespassed upon by them (Respondents) as argued at paragraph 4.5 on page 4 of the Appellants’ brief of argument, the argument therein is misleading. This is because the lower Court further held to the effect that it is only Appellants’ tenants who are in actual physical possession that can sue them (Respondents) for trespass and injunction in respect of the land in dispute. The Respondents submitted that the phrase used by the lower Court to wit: “that there were tenants on the land who were in actual physical possession of the land” is quite different from the phrase “the Plaintiffs’ tenants who are in actual physical possession”. The Respondents submitted that the lower Court rightly made the finding of fact that Appellants by their own evidence showed clearly that they were not in actual physical possession of the land in respect of which they sued them (Respondents) for trespass.
The Respondents submitted that it is trite that in all civil cases, the person who asserts must prove. That the Appellants in the instant case, are to prove their case and make it so strong enough to support their pleadings. That as they failed to do this, their case remained unproved, however elegant their pleadings. That their (Respondents) failure to prove their case, even if they did not give evidence cannot alleviate the primary burden on the Appellants to prove their case. That the exclusive possession by the Appellants of the land in dispute in the instant case was far from being proved and as they (Respondents) never admitted by their pleading and or evidence the case of the Appellants. This Court was urged to so hold and dismiss the appeal.
Dwelling on their issue 3, the Respondents submitted to the effect that there was no customary arbitration and referred to the evidence of PW2 under cross-examination on page 216 of the record. It is the stance of the Respondents that a peace meeting initiated by a DPO cannot amount to customary arbitration and that the lower Court rightly held that they (Respondents) are not bound by the decision of the panel as contained in Exhibit AAA2. That the proceedings of the arbitral panel offend the two pillars of natural justice. The said panel which comprised of the trespassers who entered their farmland, did not give audience to them. That considering the composition of the said panel, the lower Court rightly held that they (Respondents) were not bound by the decision of the said panel. The Court was urged to nullify Exhibit AAA2. That contrary to the submissions of the Appellants that they (Respondents) initiated the peace meetings, it was the DPO who did so. The Court was again referred to page 216 of the record on the cross-examination of the Sooko of Itaakun – PW2. It is the stance of the Respondents that an arbitral panel that intends that its decision be binding on all parties must give audience to both parties to state their respective cases. That they validly resiled from participating in the said proceedings when they observed that the proceedings of the panel were against the principles of natural justice. Respondents submitted that where it is shown that there is a breach of the principles of fair hearing such proceedings are rendered null and void. In conclusion, Respondents submitted that the procedure, composition, judgment and award of the said customary arbitration panel was in breach of the Respondents’ right to fair hearing and thus cannot be binding on them (Respondents).
In their reply brief of argument, the Appellants challenged the competence of Respondents’ issue 1. I do not see how the Appellants can properly do this when their own issue 1 and the Respondents’ issue 1 are the same in purport. The challenge by the Appellants of the Respondents’ issue 1 would therefore appear to tantamount to the Appellants cutting their “own nose” as it were, to spite “the face” of the Respondents as it were. I therefore see no useful purpose considering the challenge of the Appellants to issue 1 formulated by the Respondents would serve. All the other arguments in the Appellants’ reply brief I cannot but observe fall short of replies to any new issues raised by the Respondents in their brief of argument. Indeed, the Respondents who formulated 3 issues which as earlier stated are the same in purport with the 3 issues formulated by the Appellants, have made no arguments outside the circumference of those issues. Flowing from all that have been stated above, is that the arguments in the Appellants’ reply brief, are discountenanced.
The judgment of the lower Court appealed against by the Appellant is on pages 235-275 of the record. The lower Court having shown itself to have considered the respective cases of the parties as presented in evidence and also having had the benefit of the written addresses of parties in which they formulated the issues for determination in the case, stated thus: –
“… I have given careful consideration to the issues as formulated by the parties and I see no difference between the two set of issues. As a result I shall adopt the issues as formulated by plaintiffs (sic) counsel in the determination of this case. The first issue is whether the defendants are bound by the Customary Arbitration Decision/Award made in respect of the land in dispute prior to the institution of the suit. … Customary arbitration by the Chiefs or Elders of the community is one of many African customary modes of settling disputes and once it satisfies the necessary requirements the decision would have binding effect on the parties and this creates an estoppel. It is recognized under Nigerian jurisprudence. See … For a customary arbitration to be valid it must satisfy the following essential conditions namely: (a) there has been a voluntary submission of the dispute to an arbitration of one or more person; (b) it was agreed by the parties either expressly, or by implication that the decision of the arbitrators would be accepted as final and binding; (c) the arbitration was in accordance with the custom of the parties or their trade or business; (d) the arbitrators reached a decision and published their award; and (e) the decision or award was accepted at the time it was made. See … Indeed in paragraph 32 of the defendants (sic) statement of defence and the written statement on oath of the DW8, defendants averred that they reported the incident to Sooko of Itaakun for the settlement of the dispute between them. No doubt it was pursuant to this that a peace meeting was conducted by Sooko Itaakun PW2. And the outcome of the meeting was Exhibit “AAA2”.
It is now the contention of the defendants that they were not bound by Exhibit “AAA2”. Plaintiffs on the other hand insisted that having voluntarily participated in the peace meeting held in respect of the land in dispute, defendants could not be heard to resile from its outcome.
I have earlier set out the requirements for valid customary arbitration. The question relevant at this point in time is whether the events leading to emergence of Exhibit “AAA2” amounted to a customary arbitration.
…
I have scrutinized Exhibit “AAA2”. At page 3 of Exhibit “AAA2” the secretary PW4 wrote that PW2 appointed a committee of five notable individuals of which he was the secretary. It was this committee that took the decision contained in Exhibit “AAA2”. But its decision was announced by PW2. Exhibit “AAA2” was signed by PW2 and PW4. The chairman of the committee allegedly set up did not sign the decision of his committee. Can one then say that Exhibit “AAA2” was the decision of an arbitration panel?
Plaintiffs contended that defendants did not at that time objected (sic) to the decision of the committee or should I say that of the PW2 and PW4. This is to the facts and evidence led before me. Defendants indeed pleaded and led evidence that as a result of the decision of Sooko Itaaku’s Court. (sic) They lodged a complaint before the Catholic Institute of Justice Development and Peace Commission but plaintiffs did not accept the letter of invitation. Moreover, the letter of one Busari A.O. withdrawing his signature to Exhibit “AAA” was an indication that defendants (sic) family did not feel bound by the decision in Exhibit “AAA” Exhibits “AAA3”, “AAA4”, and “AAA5” were volunteered to the police, PW8 after the purported settlement reached in Exhibit “AAA2”. The exhibits showed that dispute over the farmland continued between the parties.
Finally, in arriving at the decision in Exhibit “AAA2”, the composition of the committee was faulty. It did, not in my view give room for unbiased assessment of the dispute between the parties. It is the law that a person should not be a judge in his own case (nemo judex in causa sua). In Africa, the equivalent is that no matter how sharp a knife or cutlass is, it could not be used to prepare its own handle. There was flagrant abuse of this principle of fair hearing. PW2, Sooko Itaakun who set up the committee that purportedly arbitrated the matter from his evidence before the Court is a member of plaintiffs (sic) family. The secretary to the committee that wrote Exhibit “AAA2” is a member of plaintiffs (sic) family. Finally, Alhaji Adeyeye Adediran, a prominent member of plaintiffs (sic) family and who allegedly took part in felling the Iroko trees, that led to the present suit was a member of the arbitration committee. The testimony of PW5 led credence to this fact. This fact stuck out like sore thumb and I cannot loss over it. Will it be proper for this Court to overlook this flagrant abuse of the principle of fair hearing and hold that the decision in Exhibit “AAA2” binds the defendants? In my view, the answer is No. Though plaintiff’s (sic) counsel argued that oral evidence is not admissible to vary or contradict the content of a document. It is a correct statement of the law. However, it is the same law that gives this Court latitude to examine what transpired before the customary Court before reaching its decision. Finally, on issue one, I hold that the purported customary arbitration decision contained in Exhibit “AAA2″ is not binding on the defendants. Consequently, issue one, is resolved against the plaintiffs.”
The next issue the lower Court considered in its judgment and which was the third of the three issues it set out to resolve was whether or not the counter-claim of the Respondents should be not dismissed. This issue was resolved against the Respondents. It is in the dismissed counter-claim that the Respondents purportedly claimed for a declaration of entitlement to the “customary right of occupancy to the land at Aje, Alahun village, Ikire, Osun State”, special and general damages for trespass; and injunction. There is no appeal against the decision of the lower Court dismissing the said counter-claim. In the light of this, I don’t consider it expedient to re-produce whatever the lower Court stated in relation to the counter-claim it dismissed.
The issue the lower Court treated in its judgment after it had dismissed the counter-claim of the Respondents was the second of the three issues it set out to resolve in the case to wit: whether the Appellants have proved their case to entitle them to reliefs they sought in their action. Re-produced hereunder is what the lower Court said on the issue. It goes thus: –
“The second and final issue is whether the plaintiffs have proved their case to entitle them to a grant of their reliefs.
In resolving this issue and for purpose of clarity, there is the need to restate the reliefs claimed by the plaintiffs.
Plaintiffs claim against the defendants is for damages for trespass and perpetual injunction to restrain defendants from continuing in their trespass on plaintiffs (sic) land.
Trespass to land means any unjustifiable interference with land in the possession of a party. It constitutes the slightest disturbance to the possession of land by a person who cannot show a better right to possession. See … It is settled law that every person in exclusive possession of land can bring an action for trespass against any person other than the true owner or a person with a better title in respect of any interference with his possession. Therefore, for a plaintiff to succeed in an action for trespass, he must establish exclusive possession of the land at the material time. See … From the state of pleadings and testimonies before the Court each parties (sic) traced their root of title to different sources. The identity of the land in dispute between the parties is not in doubt Exhibits “AAAL” and “APLI” is instructive in this regard. Though, plaintiffs claim a smaller area than what the defendants are claiming. The other exhibits particularly Exhibits “AA4”, “AAA4”, “AAA5”, “AAA6”, “AAA7”, “AAA8” showed clearly that there has been running battle between the parties as to the ownership of the disputed land.
To show that they are the owners of the land, plaintiff traced their radical root of title to Aisiolu and Adenrele, who migrated from Ile-Ife to Itaakun. They traced how the land devolved though generation until it got to them. They led evidence as to the persons they put on the land who paid annual customary tributes (Ishakole) to them. They traced the root cause of the problem on the land to felling of timber trees in their family farmland on which the defendants challenged them.
The defendants on their part traced their own root of title to one Awodeyi who granted the land in dispute to their father. That they have been in possession of the land until defendants (sic) trespassed on the land by felling timbers on the land. They led evidence of tenants on the land and boundary men as well as that of the woman that processed palm oil from the palm trees on the land for their family.
Their counsel too in their written submission made copious references to issue of ownership of the land in dispute.
I am however of the firm view that both parties lost focus of the reliefs before the Court while fighting ferociously on what is not before the Court. They fought the case as if they were seeking declaration of title and not an action for trespass.
The plaintiffs in this case succeeded in proving that they put tenants on the land, and that such tenants were still on the land the trespassed upon. PW1, in paragraph 6 of his further written statement on oath clearly brought this to the fore. In addition the testimony of PW6, Lukeman Adegbite both in his written deposition and cross-examination showed that indeed some tenants were on the land.
It is trite law that burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. See …
In civil cases, the onus of proving an allegation is on the plaintiff and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Parties in civil suits must prove their cases on preponderance of evidence and on balance of probabilities. It is after the burden of proving the case has been discharged in accordance with the above principle of law that the burden shifts and continues to shift. But where a party a (sic) fails to discharge this burden then the opponent needs not prove any fact and the party alleging cannot rely on the opponent’s case. A party must prove its case on credible evidence of its witnesses and is not at liberty in law to make a case or rely on the weakness of its opposite party in order to succeeds (sic). See …
In line with the above principle of law and evidence adduced by the parties, more importantly, the plaintiffs can one say that plaintiffs discharged the burden placed on them by law?
It is clear and trite that only a person in actual possession of land can sue for trespass in respect of such land. The plaintiffs through their own evidence showed clearly that they were not in actual physical possession of the land in respect of which they sued for trespass. Rather, they succeeded in establishing before the Court that there were tenants on the land who were in actual physical possession of the land. It would have been another case entirely if those tenants sued for trespass and call the present set of plaintiffs as witnesses. See …
For the above reason, I resolve issue 2 against the plaintiffs.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Finally, since plaintiffs failed to prove that they were in actual physical possession, their claim for damages for trespass and perpetual injunction fails. Consequently, plaintiffs (sic) suit is dismissed in its entirely.
Having found that there was no counter-claim strictly so called before the Court, defendants counter-claim is equally dismissed.”
I have re-produced and read very painstakingly, the whole of the judgment of the lower Court on the two issues it identified for resolution in relation to the Appellants vis-a-vis the Respondents in its judgment on appeal, and which portions have been underlined to bring to the fore the reasoning and findings made by the said Court in coming to its conclusions resolving the said issues against the Appellants. This became necessary because the impression one gathers in reading the totality of the briefs of argument of the parties, particularly the brief of argument of the Appellants, is that what the Appellants have set out to achieve in this appeal, is to ride roughshod over a claim in trespass, to establish a title to the land in dispute; hence their position that they proved a right to exclusive possession of the land in dispute by the tenants they have on the said parcel of vis-a-vis the case of the Appellants on the pleadings and as appreciated by the lower Court, as being one of trespass and injunction simpliciter (i.e. reliefs which did not call for the resolution of the title of the parties to the land in dispute). This is against the backdrop that the lower Court found that the reliefs the Appellants sought, for their sustenance required only the proof of their physical or actual possession of the land in dispute. This finding in my considered view is clearly at variance with the position of the Appellants to the effect that as they have established a better title to the land in dispute, and that their “better title” vested them a right to exclusive right to the possession of the land in dispute.
The methods of proving ownership of/to land have long been settled and remain sacrosanct till the present day. For the said methods, see the case of IDUNDUN V. OKUMAGBA (1976) LPELR-1431 (SC) wherein it was pointed out by the Supreme Court that there are five ways in which ownership of/to land may be proved. These are: –
1. Ownership of land may be proved by traditional evidence;
2. Ownership of land may be proved by production of documents of title which must of course be duly authenticated in the sense that their due execution must be proved unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents 20 or more years as at the date of the contract;
3. Acts of the person or persons claiming the land such as selling, leasing or renting out all or part of the land or farming on it or on a portion of it provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of the land may be prima facie evidence of a particular piece or quantity of land with reference to which such acts are done. Such acts of long possession in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence. Moreover, under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more or cannot stand when another proves a good title;
5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land may be the owner of the land in dispute.
The position of the law as enunciated above, has consistently been maintained over the years (hence the use of the word sacrosanct before now); and in the case of AJIBOYE V. ISHOLA (2006) LPELR-301(SC) the Supreme Court made it clear that there is a distinction between the five settled and sacrosanct methods of proving ownership/title to land and mode of acquisition of title to land. That the mode of acquisition of title to land may be by: –
a. first settlement on the land and deforestation of the virgin land;
b. conquest during tribal wars;
c. gift;
d. grant – customary;
e. sale;
f. inheritance; etc.
It is however to be noted that in the AJIBOYE case, the Supreme Court further said to the effect that it is the duty of the plaintiff in an action for declaration for title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title as the law is that the said plaintiff must succeed on the strength of his own case and not on the weakness of the defence although the plaintiff may take advantage of the defendant’s evidence where it supports his case. See also the case of ADESANYA V. ADERONMU (2000) LPELR-145(SC) wherein the Supreme Court amongst others again held to the effect that the law is well settled that to succeed in a claim for a declaration of title to land the Court must be satisfied as to: (1) the precise nature of the title claimed that is to say whether it is title by virtue of original ownership, customary grant, gift, conquest, sale under customary law, long possession or otherwise, and (2) evidence establishing the nature of the title claimed.
Having regard to the averments in the statement of claim of the Appellants, it is obvious that they predicated their supposed ownership to the land in dispute on partition, a customary law incident. This is because partition where it has been carried out terminates communal ownership of land by a family and/or community. I must stress the fact that I do not see anywhere in the record or any part therein, where the Appellants adduced evidence as to partition and a fortiori where the lower Court made a finding in favour of such a manner of acquisition of title to the land in dispute by the Appellants or made a finding in respect of the said manner of acquiring title against the said Appellants. It is trite law that averments in pleadings, go to naught when the averments are not supported by appropriate evidence.
The Appellants having not proved the fact of the partitioning of the land of Ajala to Konigbagbe as alleged in paragraphs 11 to 13 of the statement of claim, in my considered view cannot impugn the finding of the lower Court in the underlined portion of its judgment that has been reproduced hereinbefore to the effect that both parties lost focus of the reliefs before the Court while fighting ferociously on what is not before the Court. They fought the case as if they were seeking a declaration of title and not an action against trespass. The lower Court in my considered view was eminently right having regard to the fact that the Appellants, unlike the Respondents in their supposed counter-claim or ill-conceived and incompetent counter-claim that was dismissed, never claimed for any relief analogous to a claim for declaration of title. This is particularly so when it is appreciated that the often-quoted principle of law that title is in issue in a claim for trespass and injunction, is more applicable and relevant in a claim for declaration of title or one analogous to it being sought in conjunction with claims for trespass and injunction. In my considered view, this is why the Supreme Court long ago stated in the case of AMAKOR V. OBIEFUNA (1974) LPELR-452(SC) to the effect that trespass to land is actionable at the suit of the person in possession of the land. That person can sue for trespass even if he is neither the owner nor a privy of the owner. This is because exclusive possession of the land gives the person in such possession the right to retain it and to undisturbed enjoyment of it against all wrong doers except a person who could establish a better title. Therefore, anyone other than the true owner who disturbs his possession of the land can be sued in trespass and in such an action it is no answer for the defendant to show that the title to the land is in another person. Again, I cannot but reiterate that the Appellants have not demonstrated in this appeal that they proved their title to the land in dispute as pleaded by them in their statement of claim to take benefit of the position of the law that by the better title they have to the land in dispute, they have a right to exclusive possession of the same and that their claims for trespass and injunction must by law be granted; and which the lower Court in my considered view rightly did not grant.
Furthermore, it would appear that the Appellants did not appreciate the position of the law to the effect that even though possession is nine tenth of the law, a party who relies on a known and identifiable root of title cannot establish title to a parcel of land in dispute by relying alone on acts of possession given the connotation of “possession” in the realm of land law. See the case of BALOGUN V. AKANJI (1988) LPELR-720(SC) wherein the Supreme Court dwelling on “effect of reliance on acts of possession; whether title to land will be lost upon failure to show acts of possession” stated thus: –
“l repeat once more that the opinion held by many of our trial Courts that in every land case where title is in issue the dictum of the Full Court per Webber, J. in Ekpo v. Ita supra (that the onus is on the plaintiff claiming a decree of declaration of title to land to prove acts of possession and/or ownership, numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners) applies, is erroneous. That dictum will only apply where the plaintiff’s root of title is acts of possession. It will not apply where the root of title pleaded is sale and conveyance nor will it apply where the root of title, pleaded and relied upon is traditional evidence (as in this case).
In either case, acts of possession may be exercised subsequently and consequently to the primary root of title relied upon. In such a case once, and where, the primary root of title had been successfully established, the plaintiffs wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he has not shown numerous and positive acts of possession in addition. No. That is not the law: …
One final word on Ekpo v. Ita supra. Anyone who pleads Acts of possession as his root of title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act Cap 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading Acts of Possession as his root of title is simply saying “l do not know how I got the land. All I know is that I have been in possession and have exercised various positive acts of possession. Now you prove that I am not the owner.” Put in this way, it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded, and proved. In such a case, title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the Court will be obliged to look at the acts of possession of the parties and there from determine on whose side the presumption in Section 145 Evidence Act will operate.…”
Having regard to the position of the law as enunciated in the case under reference above, I am of the considered view that the situation the Appellants have depicted in their various submissions can be likened to that in which it is the tail wagging the dog instead of the natural situation of the dog wagging the tail. This is because it is inconceivable that the Appellants who pleaded partition/inheritance as their root of title and which they did not establish can accuse the lower Court of not finding the reliefs they claimed in their action in their favour on the basis that they established better title to the land in dispute by the act of possession they have exercised by having tenants on the said land in dispute.
It is indeed incomprehensible that the Appellants who relied on the customary arbitration tendered as Exhibit AAA2 and which in law could be taken to operate as or create estoppel per rem judicatum and who pleaded the fact of the customary arbitration in paragraph 27 of their statement of claim never thought it fit to have claimed for a relief analogous to that of declaration of title. In this regard, see the case of OKEREKE V. NWANKWO (2003) LPELR-2445(SC) wherein the Supreme Court dwelling on “meaning of customary arbitration as well as conditions for the decision of a customary arbitration to apply as estoppel per rem judicatam; ingredients for a valid and binding customary arbitration” stated thus: –
“The main question under consideration is the validity or binding effect of Exhibit “B” which is the proceedings and decision of a non-judicial body, that is a body not vested with judicial powers by virtue of Section 6 of the 1979 or 1999 Constitution. It is a body known as customary arbitrators. Speaking on the subject in Raphael Agu v. Christian Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 407, Karibi-Whyte, JSC defined customary arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their community and the agreement to be bound by such decision or freedom to resile where unfavourable. A decision by a Court of competent jurisdiction creates an estoppel per rem judicatam but an award by a customary arbitration will have the same consequence if certain pre-conditions are satisfied. These are distilled in a plethora of decisions of this Court, see … From the principles enunciated in these decisions, the ingredients or preconditions for a valid customary arbitration may be stated to be as follows:
1. that there has been a voluntary submission of the matter in dispute to an arbitration of one or more persons;
2. that it was agreed by the parties either expressly or by implication that the decision of the arbitrators will be accepted as final and binding;
3. that the arbitration was in accordance with the custom of the parties or of their trade or business;
4. that the arbitrators reached a decision and published their award and;
5. that the decision or award was accepted at the time it was made. See …”
Indeed, it is clear from another old case decided by the Supreme Court that dealt with customary arbitration that a Court before which the same is brought up by a party or the parties in the case, is not willy-nilly expected to find it valid and proved. The case in which the Supreme Court made this apparent is that of EKE V. OKWARANYIA (2001) LPELR-1074 (SC) wherein the said Court per Uwaifo, JSC; stated thus: –
“In Ohiaeri v. Akabeze (supra), Akpata J.S.C. who read the leading judgment proffered a rationalisation for the need to be circumspect about customary arbitration. He observed at page 24 thus:- “It is a common feature of customary arbitration in a closely knit community that some of the arbitrators if not all, not only have prior knowledge of the facts of the dispute, but also have their prejudices and varying interests in the matter, and are therefore sometimes judges in their own cause and are likely to pre-judge the issue. Prior knowledge and pre-judging issues are more pronounced in land disputes having bearing with the founding of the village and how families migrated to the village and come to occupy parcels of land. The arbitrators are well informed on these matters. The position however is that traditional history is sometimes transmitted, received or construed with a slant by the person using it for a purpose. Hence it is essential before applying the decision of a customary arbitration as an estoppel for the Court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award.”
I have perused the aforementioned Exhibit AAA2. It is titled “a report on the peace meeting conducted by Sooko of Itaakun: Oba Victor Adefisoye Ayoade (JP) on the instruction of the Divisional Police Officer Irewole Local Government amongst members of Omolaja family and invited prominents individual (sic)”. I cannot but note that in this suit wherein the Respondents have challenged Exhibit AAA2 which the Appellants would appear to have pleaded to shore up as it were their unproven title to the land in dispute, they (Appellants) never testified that at any point in time after its making, the Respondents ever complied with the same by abiding by whatever decision or decisions that were made thereat. Surely, I am of the considered view that if the Respondents had complied with the decision or decisions in the said Exhibit, the Appellants would not have instituted the instant case. The refusal to comply with the decision or decisions in the Exhibit in question at any time prior to the institution of this suit by the Appellants, in my considered view is sufficient evidence that the Respondents never considered themselves to be bound by the “purported arbitration” made by a committee put in place by the PW2. The said purported arbitration having been at the instance of the Police as it were, would again appear to negate the requirement of voluntary submission to the peaceful resolution. This is because, “instruction” as it appears in the heading of Exhibit AAA2, in my considered view in fact negates the notion of a person voluntarily taking a cause of action. In any case, the evaluation of the said Exhibit as carried out by the lower Court in the portions of its judgment reproduced hereinbefore and duly underlined and which discloses that the lower Court furnished sufficient reasons in not holding the Exhibit in question to be a valid and binding arbitration, cannot sustain the accusation that the lower Court acted on speculation in coming to its finding in respect of the said Exhibit. I am of the considered view that the proper evaluation of a piece of evidence in the nature of Exhibit AAA2 cannot be impugned by the Appellants stating that the lower Court relied on evidence not pleaded. Exhibit AAA2 by its very nature is a piece of documentary evidence and the Appellants were the parties that first pleaded and tendered the same even though the law does not expect evidence to be pleaded. Therefore, the Appellants’ stance that the lower Court relied on evidence not pleaded when the evaluation of the said Exhibit revealed all the facts relied upon by the lower Court in finding it to be in violation of the principle of natural justice to wit: nemo judex in causa sua, in my considered view cannot be faulted.
Flowing from all that has been stated above, Appellants’ issues 1 and 2 that were argued together by them and their issue 3, is that the said Appellants have failed to demonstrate how the lower Court was wrong in its finding to the effect that since tenants put on the land in dispute by the Appellants were in actual possession of the same, the reliefs sought by them (Appellants) could not be granted.
In the final analysis, this appeal is without merit and is consequently dismissed. The judgment of the lower Court dismissing the claims of the Appellants is hereby affirmed.
Costs of N200,000.00 is hereby awarded in favour of the Respondents against the Appellants.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I abide by the conclusion reached therein.
YUSUF ALHAJI BASHIR, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my noble brother, AYOBODE O. LOKULO-SODIPE, JCA, his Lordship has ably resolved all the contending issues in this appeal admirably well. I agree completely with his reasoning and conclusion that this appeal lacks merit and is consequently dismissed.
I abide by the order in terms of cost made in the leading judgment.
Appearances:
Olufemi Akintomiwa, For Appellant(s)
C.B. Ayog, For Respondent(s)