AFOLAYAN & ANOR v. BABALOLA & ORS
(2022)LCN/16073(CA)
In The Court Of Appeal
(ILORIN JUDICIAL DIVISION)
On Thursday, April 28, 2022
CA/IL/59/2021
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. CHIEF EZEKIEL AFOLAYAN 2. CHIEF ADEYEYE ONIKOSI (For And On Behalf Of Ilowe Community Kajola Oke-Ero LGA,Kwara State) APPELANT(S)
And
1. TIAMIYU BABALOLA 2. SADIKU OLUODE 3. FEMI AJIBOYE 4. SUNDAY ODERINDE 5. ISIAH ALE 6. ISAAC ALADEOKIN 7. JIMOH SANNI. 8. JIMOH AJANAKU (ATAPASE) 9. OLUWOLE AJIBOYE RESPONDENT(S)
RATIO
THE DOCTRINE OF QUC QUID PLANTATOR SOLO SOLO CEDIT
They are all in agreement that it is communal land not yet partitioned. Anything planted by any member is still communal with the doctrine of quic quid plantatur solo solo cedit. See GAJI VS PAYE (2003) 8 NWLR PT 825 PG. 583; ANYAFULU VS MEKA (2014) 7 NWLR PT 1406 PG 396; EKPENDU VS ERIKA (1959) SCNLR PG. 186; ACHITIHU VS ANYATOUWU (2013) 12 NWLR PT. 1368 PG. 256; AGADAMA VS. OMADIDE (2021) LPELR 53412. PER NDUKWE-ANYANWU, J.C.A.
WHETHER OR NOT THE ONUS OF PROOF IN CIVIL ACTION SHIFTS FROM A PLAINTIFF
In civil matters, the onus of proving an allegation is on the Plaintiff/Appellant and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Where a party fails to discharge this burden then the opponents need 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 the Respondents in order to succeed. See IMAN VS SHERIFF (2005) 4 NWLR PT 914 PG 80; ELIAS VS OMO-BARE (1982) 5 SC PG. 25; AGBI VS OGBEH (2000) 11 NWLR PT 990 PG 65. PER NDUKWE-ANYANWU, J.C.A.
THE POSITION OF LAW ON WHEN A PARTY IS ENTITLED TO JUDGEMENT
A party is only entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. The mere fact that the Court rejected the evidence of a defendant does not entitle the Plaintiff to judgment. BELLO VS ARUWA (1999) 8 NWLR PT 615 PG 454.
In summary, the Appellants were not able to prove their case against the 1st–7th Respondents OLAGUNJU VS OYENIRAN (1996) 6 NWLR PT. 627 PG. 349. The trial Court did not believe their assertion. The Appellants’ witnesses admitted the assertions of the Respondents against their own case. See AKPAN VS UMOH (1999) 11 NWLR PT 627 PG 349; AGBANELO VS UBN LTD (2000) 4 SC PT 1 PG 233. PER NDUKWE-ANYANWU, J.C.A.
WHETHER OR NOT FAMILY OR COMMUNAL LAND CAN GIVE RISE TO PERSONAL EXCLUSIBE OWNERSHIP OF A LAND
It has been proved through evidence in the lower Court that there is no control for anything you wish to plant on communal land. The implication is that whatever anyone plants on communal land is for the entire Community following the maxim of Quic quid Plantatur Solo Solo Cedit
To hold otherwise would certainly change the character of communal land and would enable a party benefit from his own wrongdoing which the law forbids. See EKE VS FRN (2013) ALL FWLR PT 702 PG 748. The land remains that of Community since the consensus is that there is no control in what you plant.
It is the law that a user of family or communal land can never and does not give rise to personal exclusive ownership of such land. See OGBONI VS OJA (1996) 6 SCNJ PG 140, OLALEYE VS AKANO (2007) LPELR 8338.
For avoidance of doubt, communal land as the word connotes, is land belonging to the Community, Village or Family and never to an individual. See ADETONA VS AGANI (1959) WRNLR PG 213, OGUNLEYE VS ONI (1990) LPELR 2342. PER NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State delivered on 18th January, 2021 by H. A. Gegele Judge dismissing the Claimants’ suit. The Claimants in the lower Court claimed the following reliefs:
i. A DECLARATION that no individual member of Ilowe community has the right to plant cash crops (tree crops) such as Cashew on any part of Ilowe communal land until such land has been partitioned by the Community.
ii. A DECLARATION that the planting by all the defendants, of Cashew trees and/or other cash crops on Ilowe of Kajola communal land amounts to a breach of the custom, tradition, rules and regulations of Ilowe community and as such the cash crops are liable to be removed or forfeited to Ilowe Community.
iii. AN ORDER directing all the defendants to remove the cashew trees and any other cash crops planted by them on any communal land of Ilowe Community in Kajola town, Oke-Ero LGA, Kwara State, or forteit the cash crops to the Ilowe Community.
iv. PERPETUAL INJUNCTION restraining all the defendants from any cash crop farming, either by planting, growing, nurturing, or harvesting any cashew or other cash crops on Ilowe communal land, either by themselves, agents, labourers, employees, assignees or any other person claiming through them.
In proof of their case, the Appellants called five (5) witnesses and tendered one (1) exhibit. The Respondents called two (2) witnesses and tendered no exhibits. At the end of a full trial, the learned trial Judge delivered his considered judgment dismissing the Appellants’ claim as they had failed to prove their case on the balance of probabilities.
The Appellants were dissatisfied by this judgment and filed a notice with five (5) grounds on 1st April 2021. The Appellants filed his Appellant brief 2nd August 2021.
The Appellants articulated three (3) issues for determination as follows:
ISSUE 1
Whether having regard to the pleadings of the parties and the evidence adduced by the claimants, the learned trial Judge was not wrong when he held that the claimants are not entitled to the reliefs sought.
ISSUE 2
Whether the learned trial Judge was right in not considering legal authorities cited by Appellant Counsel as it relates to communal land before coming to the conclusion that the Appellants are not entitled to the reliefs sought.
ISSUE 3
Whether the learned trial Judge was right in not giving judgment against the 8th and 9th Respondents in view of their admission and failure to contest the case of the appellants.
The 1st Respondent filed its brief on 21st September, 2021 but deemed properly filed and served on 27th October 2021. In it, the 1st Respondent articulated only one (1) issue for determination thus:
Whether the lower Court was right when it dismissed the case of the appellants.
The 2nd–7th Respondent’s brief was filed on 17th September, 2021 but deemed properly filed and served on 27th October 2021. In it the Respondents articulated three (3) issues for determination thus:
i. Whether from the pleadings and evidence from both parties the Honourable trial Judge was right when he held that the claimants failed to prove their case against the 2nd to 7th defendants, now respondents.
ii. Whether by the pleading and evidence of the claimants they have proved the history, custom and tradition of Ilowe people as pleaded.
iii. What is the effect of the trial Court’s failure to comment or pass judgment on the 9th and 10th defendants?
The Appellant’s issue one (1) is the major issue which the other parties have also articulated in their briefs.
ISSUE 1
The learned Counsel to the Appellants submitted that the learned trial Judge erred in law when he dismissed the case of the Appellant. Counsel argued that certain lands known as Aleju is Communal Land and that cash crops are not allowed to be planted by any member of the village.
Counsel stated that both parties agree that the land in dispute is Communal Land. The Appellant insists that the use of the land is regulated by their tradition that no cash crop will be planted on the Aleju Land since it has not been partitioned. Counsel submitted that the reason for instituting this action is to prevent the Respondents from laying claim or ownership of Communal Land in future by virtue of the fact that they had planted cash crops.
Counsel stated that the implication of planting economic trees or cash crops was captured in the case of EREWA VS IDEHEN (1971) LPELR 1157, EDIO EKRETSU VS. OYOBEBERE (1992) 11–12 SCNJ PT. 2 PG 189. Where the Supreme Court held:
Planting of permanent economic trees which as an aspect of farming, was held to subsume under agriculture, and constituted proof of ownership by the occupiers of the land. See also the decision in DASHE V JATAU (2016) LPELR 40180.
Counsel argued that the burden was on the Respondents to prove the custom that economic trees can be planted on Communal Land. See EKWEOZOR VS REG TRUSTEES OF SAINT SAVIOURS APOSTOLIC CHURCH (2020) LPELR 49568 where the Court held:
“Once it is claimed that land is communally owned, it instantly conjures up a number of vagaries incidental to our (Nigeria) indigenous system of tenure and ownership of land. Among them are right of the head of the community (Okpala in Iboland), to allocate parcel thereof on condition of varying occupational rights, ranging from separate ownership to mere temporary occupation. Can it be stated that once a person is shown to be in occupation of parcel of land which forms part of land communally owned, he should be presumed to be owner? I think not.”
Counsel stated that the Appellants were worried about the attitude of the Respondents having planted economic trees before partitioning as regards the maxim Quic Quid plantatur Solo Solo cedit. See AGADAMA VS. OMADIDE (2021) LPELR 53412, KAMBA VS NDAGI (2020) LPELR 50245 where the Court held:
“It is a general rule of great antiquity and it means that whatever is affixed to the soil becomes in contemplation of the law, a part of it and is subjected to the same right of property as to the soil itself … Similarly, if trees were planted as seeds sown on the land of another, the owners of the soil became the owner of the trees planted or the seeds as soon as they had taken root.”
Counsel faulted the learned trial Judge when it placed probative value on the evidence of CW2 who admitted that the Aleju Land belonged to the Ilowe Community and everybody from the Community uses the land and that there is no law that regulates what can be planted. Counsel submitted that the evidence of CW2 cannot be used to jettison the evidence of other witnesses.
Counsel urged the Court to hold that the learned trial Judge was in error dismissing the Appellants’ case.
ISSUE 2
Learned Counsel for the Appellants submitted that they cited a load of authorities guiding the principles of the use of Communal Land. See pages 240–243 Record of Appeal. Counsel re-iterated that Counsel Addresses are very important in trials. See SIAKA ISEZUO VS. SANNI (2013) LPELR 21974 where Ogunwunmiju Justice Court of Appeal (as she then was) held:
“There is no doubt that a learned trial Judge is bound to consider the addresses of all the parties to a case. Addresses are of beneficial effect and are meant to streamline before the Court, the case being made out by each party.” Per OGUNWUNMIJU, JCA.
OBODO VS OLOMU (1987) 3 SC PG 43. See also OKOEBOR VS POLICE COUNCIL (2003) 6 SC where the Supreme Court held:
“Address of counsel forms part of the case and failure to hear the address of one party however overwhelming the evidence on one side vitiates the trial. In a written address, the Court must ensure that the parties exchange address… the Court had a duty to ask parties to address it at close of the case for the plaintiff and defendant. This is a duty which the Court must perform. A Court of law cannot adjourn a matter for judgment without asking the parties to address it.”
In BRITTANIA NIGERIA LIMITED VS. SEPLAT PET. DEV. LIMITED (2016) 4 NWLR PT. 1503 PG 541 the Supreme Court also held:
“A Court is not bound to apply any authority it has considered in its judgment. It has a duty to consider all authorities relied on by the parties but it has a right and indeed a duty not to apply particular authorities if the issue decided therein is inapplicable to the facts and law before it.”
Counsel argued that a Court is bound to consider the addresses of Counsel as they are very important to the just determination of the case. Failure of the Court to consider all the relevant materials placed before Court will occasion a miscarriage of justice and lack of fair hearing. See the cases of FAWEHINMI VS ABACHA (1996) 9 NWLR PT 475 PG 710; BRAWAL SHIPPING (NIG) LTD VS ONWADIKE (2000) FWLR PT 23 PG. 1254.
Counsel urged the Court to resolve this Issue in the Appellant’s favour.
ISSUE 3
Counsel submitted that the learned trial Judge failed to pronounce judgment against the 8th and 9th Respondents even though they filed a notice of admission of the Claims of the Appellants. See OGUNLEYE VS ONI (1990) 2 NWLR PT. 135 PG. 745; Olumide.
Counsel argued that the Court ought to have granted the reliefs sought against the 8th and 9th Respondent. Counsel urges the Court to resolve this issue in favour of the Appellants and allow this appeal.
The 1st Respondent’s Counsel submitted in his response that it was agreed by both parties that Ogba Land is sacred and its strictly controlled by custom and tradition but Alefu is not under any control. This was confirmed by CW1, CW2, CW3, CW4 and CW5 under cross-examination. The CW1, CW2, CW3, CW4 and CW5 gave contradictory evidence which the Court did not believe EMEKA VS OKOROAFOR (2017) 11 NWLR PT. 1577 PG. 410. Where a party admits to a fact in issue it is binding on the maker’s admission by a party need no further proof. ALHASSAN VS ISHAKU (2016) 10 NWLR PT. 1520 PG. 230.
Even where the admission is against interest, such admission will be admissible against the party KAMALU VS UMUNNA (1997) 5 NWLR PT 505 PG 321; WOLEKORO VS EFITINWO (2018) ALL FWLR PT 935 PG 1419.
Counsel urged the Court to hold that the burden of proving a case for declaration and injunction is on the Appellant and dismiss this appeal.
The 2nd–7th Respondents’ Counsel submitted that the Respondents gave evidence through DW1-DW2 that if the community needs the land they would be ready to remove the Cashew trees planted on the land. Counsel submitted that both parties agree that the land was communal land owned by both parties.
The only area of disagreement between the parties is to the use of the land. The Appellants claim that the totality of their land is customarily controlled and that cash crops are not allowed on the communal land. The Respondents contend that the land is divided into two (1) Ogba and (2) Alefu land. The Ogba land (near town) is controlled but not in respect of cash crops or cashew trees. The control is against any crop and that such land is sacred or reserved.
Counsel argued that the trial Judge reviewed the evidence proffered by the claimants’ witnesses under cross-examination and found that the history, custom and traditions relied upon by the Claimants does not support that claim.
Counsel argued that the Claimants/Appellants had failed to prove the traditional history of Ilowe people that members cannot plant cash crop on their communal land. CW1 also in cross-examination agreed that there is no hindrance to what type of Crops can be planted.
Counsel urged the Court to hold that the trial Court was right in dismissing the claims of the Appellants.
That the learned trial Judge did not pronounce on the 8th and 9th Respondents has not occasioned a miscarriage of justice. Counsel urged the Court to dismiss this appeal and affirm the judgment of the trial Court.
RESOLUTION
The Claimants in the Court below now Appellants’ claimed in their pleadings that the defendants now Respondents were not allowed to plant cash crops on the land as it is still communal land that had not been partitioned.
In proof of this assertion, the Appellants called five (5) witnesses and tendered one Exhibit. The Respondents in proof of his case called only two (2) witnesses and tendered no Exhibits.
The crux of this appeal is whether there is any restriction of the use of their communal land. All the parties agree that they are all jointly entitled to all the land in Kajola and that the land has not been partitioned or shared by the Ilowe Community.
That all parties in this suit are jointly entitled to all the land in Kajola that yet to be partitioned or shared by their Ilowe Community. Such land not yet partitioned includes land known as “Igbo Egidi”, “Igbo Owo”, Igbo Ihun”, “Eti Odo–Ajo” and “Alejo” among others.
The Defendants case on the other hand is that the Ilowe Family is divided into two sections Viz:-
1. Ogba Land and
2. Aleju Land
That Ogba land is the one that is strictly controlled by custom while Aleju land is not under any such control. Also, that everybody farms on Aleju land without any control and that even the Claimants have Cashew trees planted by them or inherited from their parents.
The 1st Claimant gave evidence as CW1 and called 4 other witnesses: CW2; CW3; CW4 and CW5 while the Defendants gave evidence through Tiamiyu Babalola and Sunday Oderline 1st and 4th Defendants respectively.
Was the Appellant as Claimant able to prove his assertions? The 1st Appellant testified as CW1 and called 4 other CWs. One of the CW in particular CW2 stated in evidence confirming the case of the Respondents that there is no custom of theirs that prevented the planting of Cashew Crops.
The CW2 agrees that there is control but not against the planting of cashew trees. CW4 also in his evidence in chief and under cross-examination admitted that the land in dispute is called Aleju and has not been partitioned. He also stated that everybody has a right to farm on the land. That they have land that is reserved and not partitioned yet.
This also is the evidence of CW5. An admission of fact by a party against his interest is admissible in evidence and need no further proof. AWOTE VS OWODUNNI (NO 2) (1987) 2 NWLR PT 57 PG. 367.
There is no trespass by anyone. The controversy is on whether members can plant cash crops like cashew trees. The Respondents are ad idem that there is no custom preventing anyone from planting economic trees on the land.
They are all in agreement that it is communal land not yet partitioned. Anything planted by any member is still communal with the doctrine of quic quid plantatur solo solo cedit. See GAJI VS PAYE (2003) 8 NWLR PT 825 PG. 583; ANYAFULU VS MEKA (2014) 7 NWLR PT 1406 PG 396; EKPENDU VS ERIKA (1959) SCNLR PG. 186; ACHITIHU VS ANYATOUWU (2013) 12 NWLR PT. 1368 PG. 256; AGADAMA VS. OMADIDE (2021) LPELR 53412.
The Appellants’ claim is trying to wade off unfounded fears that the Respondents would claim lands that they had planted Cashew trees on. Both parties are ad idem that the land is communal land.
The issue is whether there was any form of customary control de-barring the Respondents from planting whatever crop they wanted to plant including cashew trees.
The Appellants failed to prove their claims as the CW2, CW3, CW5 stated in the cross-examination that there is no restriction to the use by the members of the community. It is trite law that what is admitted does not require further proof by evidence.
In civil matters, the onus of proving an allegation is on the Plaintiff/Appellant and the onus does not shift until he has proved his claim on the preponderance of evidence and balance of probabilities. Where a party fails to discharge this burden then the opponents need 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 the Respondents in order to succeed. See IMAN VS SHERIFF (2005) 4 NWLR PT 914 PG 80; ELIAS VS OMO-BARE (1982) 5 SC PG. 25; AGBI VS OGBEH (2000) 11 NWLR PT 990 PG 65.
A party is only entitled to judgment if a trial Court believes and accepts his evidence and if such evidence supports his case. The mere fact that the Court rejected the evidence of a defendant does not entitle the Plaintiff to judgment. BELLO VS ARUWA (1999) 8 NWLR PT 615 PG 454.
In summary, the Appellants were not able to prove their case against the 1st–7th Respondents OLAGUNJU VS OYENIRAN (1996) 6 NWLR PT. 627 PG. 349. The trial Court did not believe their assertion. The Appellants’ witnesses admitted the assertions of the Respondents against their own case. See AKPAN VS UMOH (1999) 11 NWLR PT 627 PG 349; AGBANELO VS UBN LTD (2000) 4 SC PT 1 PG 233.
The Appellants have failed to prove their claims in the trial Court and have also failed in this appeal.
However, the Court must sound a note of warning that it is not in dispute that the land is a communal land that has not been partitioned. The Community ownership of the land is what gives it life as communal land.
It has been proved through evidence in the lower Court that there is no control for anything you wish to plant on communal land. The implication is that whatever anyone plants on communal land is for the entire Community following the maxim of Quic quid Plantatur Solo Solo Cedit
To hold otherwise would certainly change the character of communal land and would enable a party benefit from his own wrongdoing which the law forbids. See EKE VS FRN (2013) ALL FWLR PT 702 PG 748. The land remains that of Community since the consensus is that there is no control in what you plant.
It is the law that a user of family or communal land can never and does not give rise to personal exclusive ownership of such land. See OGBONI VS OJA (1996) 6 SCNJ PG 140, OLALEYE VS AKANO (2007) LPELR 8338.
For avoidance of doubt, communal land as the word connotes, is land belonging to the Community, Village or Family and never to an individual. See ADETONA VS AGANI (1959) WRNLR PG 213, OGUNLEYE VS ONI (1990) LPELR 2342.
The Appellant argued that the learned trial Judge did not pronounce judgment on the 8th and 9th Respondents who admitted the claims of the Appellant and did not contest the case of the Appellants. See PG 46 and 47 of Record of Appeal.
The Appellants’ Counsel argued that what is admitted need no further proof. See OGUNLEYE VS ONI (1990) 2 NWLR PT 135 PG 745; OLUMIDE VS AREMU (2019) LPELR (2019) LPELR 48716.
Counsel to the 2nd–7th Respondent submitted that the omission of the trial Judge to pronounce judgment on the 8th and 9th Respondent has not occasioned a miscarriage of Justice. The 8th and 9th Respondent had voluntarily released their cashew farm to the Appellants as they did not defend the case. See A.G LEVENTIS VS AKPU (2007)30 NSCQR PG. 631.
It is only where the omission is substantial that it had occasioned a miscarriage of justice will the appeal be allowed. See GBADAMOSI VS DAIRO 200729 NSCOR 137 PG 159.
It is trite that the 8th and 9th Respondent consented to the claims of the Appellant and indeed did not contest the claim.
The principle is that, not every error/mistake in the decision in the appeal will result in the decision being set aside. An error that does not substantially occasion miscarriage of justice to the Appellant will not ground the setting aside of the judgment appealed, per EKO Justice Supreme Court in SUSAINAH, (TRAWLING VESSEL) and ORS VS MR ABOGUN (2006) LPELR 7732. See also MOBIL PRODUCING (NIG) UNLTD VS JOHNSON, ONAJOBI VS OLANIPEKUN (1985) 4 SC PT 2 PG 156, OSAFILE VS ODI (1990) LPELR 2783, EZEOKE VS NWAGBO (1988) 1 NWLR PT 72 PG 616, OJE VS BABALOLA (1991) LPELR 2368.
Whereas, the 8th and 9th Respondents had conceded to the claims of the Appellants, the Appellants does not really have arguments against the 8th and 9th Respondents. The 8th and 9th Respondents had done what the Appellants wanted that is removing the cashew trees planted.
Whether or not, the trial Judge pronounced on it, the 8th and 9th Respondents have complied. No miscarriage of justice has really been occasioned by the trial Judge not pronouncing a judgment against them. This appeal is unmeritorious. It is dismissed. Judgment of the lower Court is affirmed. Cost to the Respondent is assessed at One Hundred Thousand Naira (N100,000.00) only.
ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the judgment of my learned brother, UZO I. NDUKWE-ANYANWU, JCA, and I agree with the reasoning and conclusion therein, I dismiss the appeal and abide by the consequential order.
KENNETH IKECHUKWU AMADI, J.C.A.: I have read in advance, the draft of the lead judgment of my learned brother UZO I. NDUKWE-ANYANWU, JCA. I agree with his lordship that this appeal has no merit. It is hereby dismissed, I abide by the consequential orders made therein.
Appearances:
T. E. DADA, ESQ. For Appellant(s)
CHIEF A. Y. ABOLARIN, ESQ. with him, OLUKEYEDE OLOYEDE For Respondent(s)
