AJAYI SOYOYE V. AREMU MUSTAPHA
(2013)LCN/5939(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2013
CA/I/61/05
RATIO
“The purpose of a brief of argument is to make the case of the appellant or the respondent as the case may be, as clear as possible, as pungent as possible and as persuasive as possible. A brief of argument that is hazy and phlegmatic in nature can hardly convince the court of the merit of a case. True, our courts have held that the brilliance of Counsel’s final address cannot make up for evidence to prove or disprove a point in issue See Niger Construction Ltd. vs. Chief Okugbemi (1987) 11 – 12 SCNJ p.133. That however does not mean that an address of Counsel has no useful value. It does, and eminently so, History tells us that nations have gone to war, been fired up to take a different course or direction etc largely on account of a brilliant speech, The Gettysburg address of Abraham Lincoln of Nov. 19, 1803, the “I have a dreamt” speech of Rev. Martin Luther King Jnr. in 1963, and the inaugural speech of John F. Kennedy on Jan. 20 1961 are widely acknowledged as having exhorted generations of Americans at different times in that country’s history. Literature tells us the same. The speech of Mark Antony as recorded by William Shakespeare in his book Julius Caesar also readily comes to mind. It is no less so when it comes to the address or brief of Counsel, Such an address is not addressed to the public alright, but it is addressed to the judge. Counsel must therefore strive to persuade the judge on the merit of his case. When it comes to addresses of Counsel, it makes sense to take seriously the light hearted banter or saying that “a talk like a woman’s dress should be long enough to cover the subject but short enough to be interesting”, A good brief of argument should cover the subject matter adequately and be persuasive enough to interest the judge. The appellant’s brief appears to have fallen short of this.” PER DANIEL-KALIO, J.C.A.
“It is settled law that in an action for declaration of title to land the onus is on the plaintiff to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his case and not on the weakness of the defence, except where the defendant’s case supports his case. See ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (424) 252, SHITTU VS. FASHAWE (2005) 14 NWLR (946) 671; EZE VS. ATASIE (2000) 9 WRN 73 at 88; ADESANYA VS. ADERONMU (2000) 13 WRN 104 at 115 lines 10-13.” PER UWA, J.C.A
“In the case of Madam Akon Iyoho vs. EPE Effiong & Anor, (2007) 11 NWLR Part 1044 P. 31 at p.49 The Supreme Court per Mukhtar JSC (as she then was) stated thus- “The position of the law is that a ground of appeal from which no issue has been distilled and upon which no argument has been canvassed, is deemed abandoned by an appellant and should be struck out” PER DANIEL-KALIO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
AJAYI SOYOYE Appellant(s)
AND
AREMU MUSTAPHA (On behalf of himself and Ayanbiyi Family) Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A., (Delivering the Leading Judgment): This appeal is in respect of a land dispute. It was heard at the trial stage by the High Court of Ogun State. Judgment was delivered by the trial Judge on 28/9/98. It commenced in the High Court in 1992 as Suit No. AB/28/92.
The Plaintiff in the court below who is the Respondent on appeal, sued for himself and on behalf of Ayanbiyi Family. His case as presented in his further amended statement of claim in summary is as follows:
The first settler on the land was Ogunmuyiwa, his ancestor who was a great hunter. Ogunmuyiwa settled his daughter Ayanbiyi on the land.
Ayanbiyi had three children, Victoria Olaitan Moloran, Kamiye and Folami Ogunneye. Kamiye (female) begat Alaba Dewunmi who begat the Plaintiff.
Victoria Olaitan Moloran was apparently a wealthy woman. She demolished an existing structure on the land and built a bungalow there. That was in 1937. Unfortunately, Victoria Olaitan Moloran died without any issue. Before her death however, she gave documents pertaining to her properties to her niece, Alaba Dewunmi, the Plaintiff’s mother.
Ayanbiyi who was settled on the land by Ogunmuyiwa the great hunter had a domestic servant called Adisatu Fawi. Adisatu Fawi had two children Jayeola and Latunde. Latunde begat Deyinka. The Defendant according to the Plaintiff’s account is Deyinka’s nephew.
Alaba Dewunmi the plaintiff’s mother had a close personal relationship with the defendant’s aunt Deyinka, As a result of that relationship, Alaba Dewunmi permitted Deyinka to erect a storey building on the land beside the bungalow built by Victoria Olaitan Moloran, Deyinka during her lifetime rendered account and gave part of the rent collected from tenants in the storey building to the plaintiff’s mother Alaba Dewunmi. When Alaba Dewunmi died, Deyinka continued to give part of the rent collected to the plaintiff who had assumed the position of Head of the family.
Deyinka it was, who put the defendant, her nephew, in the land in dispute. The defendant now claims ownership of the land and has refused to account for the rents collected by him.
The defendant, who is now the Appellant in his amended statement of defence, gave a different narration of the history of the land. Here in summary, is his case.
The land originally belonged to Osholoran who settled on it. Osholoran had a wife, Omolara with whom he had two children Moloran and Jayeola. When Osholoran died, as custom demanded, his brother Sotoyinbo inherited his wife Omolara. Sotoyinbo had a child with Omolara named Latunde. Latunde begat Shittu and Deyinka.
Moloran Osholoran’s daughter by Omolara built a bungalow on the land in 1973. Unfortunately, Moloran died without an issue, Jayeola Osholoran’s other child on the other hand, had six children namely Soyoye the defendants father, Fadele, Bodude, Fawemimo, Farike and Fehintola. Soyoye the defendant’s father apart from the defendant, also had Olu and Ajayi
Moloran’s bungalow was inherited by the children of Jayeola and Latunde. Latunde’s daughter Deyinka who returned from Lagos where she was residing, lived in Moloran’s bungalow and later erected a storey building on the land. Deyinka’s husband took another wife called Alake who also lived in the bungalow with her child Tawat. Deyinka collected rent from the tenants in her house and when she died, the defendant continued to do so.
The Plaintiff and the defendant in the court below gave evidence and each called two other witnesses. At the end of the case, the learned trial Judge Y. A, Adewole concluded thus:
“In conclusion, I am more inclined to believe the traditional evidence of the Plaintiff to that of the defendant, notwithstanding the fact that the defendant is in occupation of the bungalow and the storey building and claiming sole ownership of the property.”
The learned trial judge then went on to make a declaration that the building at No.43 Obafemi Awolowo, Isale Igbein, Abeokuta belongs to Ayanbiyi family. He also ordered the defendant to render account of all rents collected by him and also to pay damages to the plaintiff for unlawfully preventing him from entering the houses’
Dissatisfied with that judgment, the defendant appealed to the Court of Appeal. He formulated 11 grounds of appeal and accompanied each of the grounds with copious particulars. For the sake of succinctness, I will leave out a reproduction of the particulars given, but will state the grounds of appeal. The grounds of appeal arranged in alphabetical order are as follows:
(A) The learned trial judge erred in law when he held that the plaintiff has established that they are descendants of Ayanbiyi family through Moloran;
(B) The learned trial judge erred in law when he held:
“It is my view that there is no material contradiction in their evidence because by paragraph 20 of the further amended statement of claim, the plaintiff averred that Ogunmuyiwa a great hunter was the first person that discovered the land in dispute and he later settled Ayanbiyi his daughter on the land particularly due to the nearness of the place to a big stream called Elebo stream.”
(C) The learned trial judge erred in law when he relied on inadmissible and irrelevant documents in arriving at conclusions;
(D) The learned trial judge erred in law when she (sic) held as follows:
“The defendant gave no evidence as to the whereabout of Sura, Deyinka’s husband. I am sure that if Alake or Sura had been called as witnesses in this case, their evidence would have thrown more light on the claim of the defendant.”
(E) The learned trial judge misdirected himself on the facts when he held that the plaintiffs have established that they are descendants of Ayanbiyi through Moloran, an aunt of the plaintiff’s mother;
(F) The learned trial judge erred in law when she (sic) held that:
“I am satisfied that the plaintiff had led evidence in accordance with the decision in Lawal vs. Olufowobi “(supra)”.
(G) The learned trial judge misdirected himself on the fact when he held that the defendant led no evidence on how the land was founded;
(H) The learned trial judge misdirected himself on the facts when he held that the defendant did not deny the fact that the two buildings are family property;
(I) The learned trial judge erred in law in refusing to consider the issue of long and uninterrupted possession by the defendants for their defence. The acts of long enjoyment and possession of the land was supported by evidence from both the plaintiff and the defendant’s witnesses. See Atanda vs. Ajani (1989) 3 NWLR Part 111 Page 511 at 523 and 525;
(J) The learned trial judge erred in law in making the order directing the defendant to render account of all rents collected on the said property from the tenants from October 1999 to date and pay the plaintiff his due;
(K) The learned trial judge erred in law by a wrong evaluation of the evidence of the defendant’s witnesses which wrong evaluation occasioned a miscarriage of justice.
In his brief of argument filed on 1/9/08, the appellant distilled six issues for determination in the appeal, viz-
(1) Whether the plaintiff discharged the onus on him by providing credible, cogent and consistent evidence to establish his claim for declaration of title;
(2) Whether the learned trial judge was right to have refused to act on Exhibit ‘C’ the building plan issued in the name of Deyinka, the defendant’s nephew after it was admitted in evidence;
(3) Whether the learned trial judge was right to hold that the plaintiff led evidence in accordance with the decision in Lawal vs. Olufowobi (1999) 10 NWLR p.177 at 187;
(4) Whether the learned trial judge was right to have used Exhibit ‘A’ which is a document relating to a farmland unconnected with the property in dispute;
(5) Whether the learned trial judge was right to act on Exhibit ‘B’ the positive of a photograph when the negative was not tendered;
(6) Whether the judgment is not against the weight of evidence’
A perspicacious examination of the grounds of appeal vis-a-vis the issues for determination stated above will reveal that some of the grounds are not related to the issues for determination and vice versa. The usual practice in brief writing is that each issue for determination identified in the brief has indicated proximate to it, the ground treated by that issue. That way it is easy to know the ground that the issue treats.
Issues for determination and grounds of appeal in my view are like Siamese twins; they are inseparable. The Supreme Court per Niki Tobi JSC stated thus:
“It is the law of briefs or brief writing that issues must be formulated from the grounds of appeal. They must be based on, relate to, or arise from the grounds to appeal”.
See Mobil Producing (Nig.) Unlimited & Anor. Vs. Chief Simeon Monokpo & Anor. (2003) 18 NWLR Part 852 p. 346 at 423.It is clear that grounds D, H, I and J of the grounds of appeal as pointed out by Respondent’s Counsel in his brief of argument have no connection or relationship with the issues identified by the appellant in his brief. Those grounds of appeal therefore are deemed abandoned and ought to be struck out. There is a litany of case law on this. I will refer to just one here. In the case of Madam Akon Iyoho vs. EPE Effiong & Anor, (2007) 11 NWLR Part 1044 P. 31 at p.49
The Supreme Court per Mukhtar JSC (as she then was) stated thus-
“The position of the law is that a ground of appeal from which no issue has been distilled and upon which no argument has been canvassed, is deemed abandoned by an appellant and should be struck out”.I will therefore strike out grounds D, H, I and J of the grounds of appeal since none of the issues for determination formulated by the appellant, relate to them.
Now to the issues for determination. I have already set them out in this judgment. Respondent’s Counsel in his brief of argument submitted that the issues identified in the appellant’s brief can be condensed into two issues, namely-
1. Having regard to the state of pleadings and evidence led by the parties, whether the trial judge was right to have given the plaintiff judgment on his claim;
2. Whether the evaluation of the documents or any evidence tendered in this case (i.e. Exhibits A, B, C by the learned trial judge had occasioned any miscarriage of justice.
I am of the view that it is better to consider’ the issues for determination as identified by the appellant because being the aggrieved party, he knows how best to put across what grieves him
Issue 1
I now turn to Issue 1. That issue is whether the plaintiff discharged the onus on him by providing credible cogent and consistent evidence to establish his claim for declaration of title.
In his argument on this issue, Appellant’s Counsel R.A. Olatunji Esq. submitted that the plaintiff (Respondent here) did not satisfactorily explain who first settled on the land. He contended that none of the plaintiff’s’/witnesses ‘testified on how plaintiff’s ancestor founded the land. He further submitted that the plaintiff stated categorically that he did not know how his ancestor first got on the land. Counsel therefore submitted that the claim for declaration of title was not proved and should have been dismissed.
In his submission on this issue, Respondent’s Counsel Chief S. A. Akinbami referred to the case of
S. A. Lawal vs. Alhaji Olufowobi (1996) 10 NWLR Part 477 and submitted that the plaintiffs in the lower court satisfied the principles in that case on who founded the land, how the land was founded and the particulars of intervening owners till the present time. He referred to the evidence of PW1 and PW3 and submitted that the learned trial judge made findings of fact based on the pleadings and rightly came to the conclusion that the plaintiff had proved his case.
It is clear that the complaint of the appellant is that the respondent did not satisfactorily explain who first settled on the land. A close look at the record of appeal shows that PW1 at page 36 of the record stated that the first person that settled on the land was Ogunmuyiwa and that Ogunmuyiwa begat Ayanbiyi and settled Ayanbiyi on the land.
Now, the trial judge at page 123 and 124 of the record of appeal, thoroughly examined the evidence before him. This is what the trial judge said:
“On the issue of contradiction raised by the learned defence counsel as to who first settled on the land, the PW1, PW2 and PW3 gave evidence that Ayanbiyi first settled on the land. Though the PW1 and PW3 gave further evidence that Ogunmuyiwa, a great hunter first discovered the land and settled Ayanbiyi his daughter on the land. It is my view that there is no material contradiction in their evidence because by paragraph 2(a) of the further amended statement of claim, the plaintiff averred that Ogunmuyiwa, a great hunter was the first person that discovered the land in dispute and he later settled Ayanbiyi, his daughter on the land, particularly due to the nearness of the place to a big stream called Elebo Stream.
By paragraph 3 of the amended statement of claim, the plaintiff averred that the land subject matter of this action was originally settled upon by one Ayanbiyi several years ago.
It is my view that both facts were pleaded and led in evidence. The issue of material contradictory evidence does not arise in this case”.
At page 128 – 129 of the record, the learned trial judge considered the principles stated in Lawal vs. Olufowobi (1995) 10 NWLR P.177 at 187. He then came to the following conclusion at page 129 of the Record;
“I am satisfied that the plaintiff had led evidence in accordance with the decision in Lawal vs. Olufqwobi”.
I do not consider the findings of fact of the trial judge perverse. It is the law that an appellate court will be reluctant in interfering with the facts found by the trial court except where there is a patent and obvious error in the appraisal of evidence and ascription of probative value to same.
In Ezeajululewe vs. John Holt Ltd. (1996) 2 NWLR Part 432 p. 511 at 522 the court said-
“It is no business of an appeal court to substitute its view of the evidence for that of the learned trial judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law that such findings of fact or the inference drawn from them may be questioned in certain circumstances’
………..It will interfere where the facts found by the court of trial are wrongly applied to the circumstances of the case, or where the inference drawn from those facts are erroneous or where the findings of fact are not reasonably justified or supported by the credible evidence given in the case”‘I find no reason at all to disturb the findings of fact of the trial judge. I will therefore not disturb his findings as the trial judge in my view applied the facts correctly to the circumstances of the case.
Issue 2
Issue 2 is whether the learned trial judge was right to have refused to act on Exhibit ‘C’, the building plan issued in the name of Deyinka, the defendant’s aunt after it was admitted in evidence. It is clear that this issue was not argued by Appellant’s Counsel. He merely referred to it in passing when he submitted thus-
“Meanwhile the building plan used to build the one storey by the defendant’s aunt was expunged from evidence”-
See at page 3 of the Appellant’s Brief.
Refusing to act on Exhibit ‘C’ as the issue states, is different from “the building plan” being “expunged” from evidence as submitted by Appellant’s Counsel. Clearly Exhibit ‘C’ was not expunged. See at page 133 of the record.
The purpose of a brief of argument is to make the case of the appellant or the respondent as the case may be, as clear as possible, as pungent as possible and as persuasive as possible. A brief of argument that is hazy and phlegmatic in nature can hardly convince the court of the merit of a case.
True, our courts have held that the brilliance of Counsel’s final address cannot make up for evidence to prove or disprove a point in issue See Niger Construction Ltd. vs. Chief Okugbemi (1987) 11 – 12 SCNJ p.133.
That however does not mean that an address of Counsel has no useful value. It does, and eminently so, History tells us that nations have gone to war, been fired up to take a different course or direction etc largely on account of a brilliant speech, The Gettysburg address of Abraham Lincoln of Nov. 19, 1803, the “I have a dreamt” speech of Rev. Martin Luther King Jnr. in 1963, and the inaugural speech of John F. Kennedy on Jan. 20 1961 are widely acknowledged as having exhorted generations of Americans at different times in that country’s history.
Literature tells us the same. The speech of Mark Antony as recorded by William Shakespeare in his book Julius Caesar also readily comes to mind. It is no less so when it comes to the address or brief of Counsel, Such an address is not addressed to the public alright, but it is addressed to the judge. Counsel must therefore strive to persuade the judge on the merit of his case.
When it comes to addresses of Counsel, it makes sense to take seriously the light hearted banter or saying that “a talk like a woman’s dress should be long enough to cover the subject but short enough to be interesting”,
A good brief of argument should cover the subject matter adequately and be persuasive enough to interest the judge. The appellant’s brief appears to have fallen short of this.There is nothing to make of Issue 2 in my view. I consider the issue as abandoned.
Issue 3
Issue 3 is whether the learned trial judge was right to hold that the plaintiff led evidence in accordance with the decision in Lawal vs. Olufowobi (1999) 10 NWLR 177 at 187, This issue in my view, merely recycles issue 1 which has been dealt with already. There is nothing more to be said on issue 3.
Issue 4
Issue 4 is whether the learned trial judge was right to have used Exhibit ‘A’ which is a document relating to a farmland unconnected with the property in dispute.
I think the question that arises from the issue is this: What did the trial judge use Exhibit ‘A’ to establish? Was it to establish ownership of land as the issue seems to suggest? The answer to the question is best established by examining what the trial judge said about Exhibit ‘A’. This is what the learned trial judge said:
“Though there is no document to support the title of Moloran on the disputed land, there is evidence that
Moloran before her death gave some of her documents relating to farmland and properties to Alaba Dewunmi, mother of the plaintiff. Exhibit ‘A’ was tendered just to buttress the fact that Moloran had other landed properties and that she handed over the documents to Dewunmi before her death. Apart from that, Exhibit ‘A’ is not relevant to the land in dispute”. (Underlining supplied for emphasis).
See at Page 125 of the Record.
From the above statement of the trial judge, it is clear what the trial judge thought of Exhibit ‘A’ as far as its utility value is concerned. The suggestion in issue 4 that Exhibit ‘A’ was to establish ownership of the land is way off the mark.
Issue 5
Issue 5 is whether the learned trial judge was right to act on Exhibit ‘B’, the positive of a photograph when the negative was not tendered. Appellant’s Counsel made no effort to address issue 5 in his argument. It is therefore an abandoned issue. :
The final issue which is whether the judgment is not against the weight of evidence is an omnibus issue. There is nothing in the judgment to show that the learned judge did not property weigh the issues before him before arriving at his judgment,
Having resolved all the issues against the Appellant, I can safely say that the appeal is bereft of merit,
I therefore dismiss the appeal and affirm the judgment of the lower court, I award N50,000 cost to the Respondent.
CHIDI NWAOMA UWA, J.C.A: I read before now the judgment delivered by my learned brother Obietonbara Daniel-Kalio, JCA. I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit.
It is settled law that in an action for declaration of title to land the onus is on the plaintiff to prove his title upon a preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his case and not on the weakness of the defence, except where the defendant’s case supports his case. See ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (424) 252, SHITTU VS. FASHAWE (2005) 14 NWLR (946) 671; EZE VS. ATASIE (2000) 9 WRN 73 at 88; ADESANYA VS. ADERONMU (2000) 13 WRN 104 at 115 lines 10-13.
The apex Court has settled the methods by which a plaintiff may establish title to land in the case of IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 227. They are as follows:
(a) By traditional evidence;
(b) By production of documents of title duly authenticated and executed;
(c) By acts of ownership extending over a sufficient length of time numerous and positive e enough as to warrant the inference of true ownership.
(d) By acts of long possession and enjoyment;
(e) Proof of possession of connected or adjacent land in circumstances tendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The Plaintiff is not required to prove all five ways. He would be entitled to a declaration if any one of the methods is established. Whereas in the present case a plaintiff (now Respondent) relies on traditional evidence to prove his claim and it is found to be cogent by the trial court it is enough to sustain his claim.
The Respondent pleaded and gave evidence which was not controverted as to how he came to own the land through the original settler Ogunmiyiwa who later settled his daughter Ayanbiyi there.
The Respondent gave evidence as to who founded the land, how it was founded and details of the intervening owners till date. The pleadings as to the first settlers was supported by the evidence of PW1 and PW3, It was based on these that the learned trial judge made his findings and arrived at the conclusion that the plaintiff established his case and gave judgment in his favour’
The trial court saw and heard the witnesses, and properly appraised the evidence before the court. This Court cannot as an appellate court substitute its views in that it would have held differently. This Court will not interfere with the findings of the trial court. See, ATOLAGBE V. SHORUN (1985) 1 NWLR (PT.2) 360 and ABISI V. EKWEALOR (1993) 6 NWLR (PT.302) 643 at 647.
For the fuller reasons given in the lead judgment, I too dismiss the appeal for racking in merit and affirm the judgment of the trial court. I abide by the order made as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A: I agree.
Appearances
Appellant Counsel was absentFor Appellant
AND
Chief S. A. Akinbami with him O.O. OlusanyaFor Respondent
