AKEREDOLU v. REGISTERED TRUSTEES OF THE GOFAMINT & ORS
(2022)LCN/16147(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/IB/111/2014
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
MR. TOMIDE AKEREDOLU (SUBSTITUTED FOR MR. AKINWALE AKEREDOLU-DECEASED) APPELANT(S)
And
1. THE REGISTERED TRUSTEES OF THE GOSPEL FAITH MISSION INTERNATIONAL 2. MOSES OLADIPUPO SOFELA 3. PRINCE AYODEJU DABIRI 4. CHIEF JIMOH OKETOLA 5. PRINCE ADISA SALAWU (FOR THEMSELVES AND ON BEHALF OF THE OLOFIN CHIEFTAINCY FAMILY) RESPONDENT(S)
RATIO
THE STANDARD OF PROOF TO LAND BY TRADITIONAL HISTORY
It will be necessary to set out the standard of proof of title to land by traditional history. For a start there are 5 settled methods of proof of title to land, see SORONNADI & ANOR V. DURUGO & ANOR (2018) LPELR-46319(SC) wherein the apex Court held thusly:
“An accepted principle in the establishment of ownership of land which has now become trite is encapsulated in the case of Idundun v Okumagba (1976) 1 NMLR 200; (1976) 9-10 SC 224 where the Supreme Court held that ownership of land in dispute can be proved by any of the five ways namely- (i) By traditional history (ii) By production of title document (iii) By acts of ownership (iv) By acts of long possession (v) By proof of possession of the connected land…I place reliance on Honika Sawmill v Hoff (1994) 2 SCNJ 86 at 97-98 & 106; Temile v Awani (2001) 6 SCNJ 86 at 97-98 & 106; Temile v Awani (2001) 6 SCNJ 190 at 206; Okposin v Assam (2005) 7 SCNJ 442 at 459-460; Nwosu v Udeaja (1990) 1 NWLR (Pt.125) 188 at 218.” Per PETER-ODILI, J.S.C. PER NIMPAR, J.C.A.
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND BY TRADITIONAL HISTORY
Traditional history is one of the ways of proving title to land as settled in the age long decision in IDUNDUN V. OKUMAGBA (1976) NMLR 200. Traditional history is all about evaluating belief on the basis of handed down story and the presumed credibility. PER NIMPAR, J.C.A.
WHETHER OR NOT A DECLARATION OF TITLE TO LAND IS GRANTED AT THE DISCRETION OF THE JUDGE
A declaration of title to land is granted at the discretion of the Judge after seeing and hearing both sides in the suit. To succeed a party must plead and establish by evidence and show how the land devolved and eventually came to be owned by him. The party needs to narrate a continuous chain of devolution without a break. At the end of the oral evidence the Judge is to decide which of the two are telling the truth and proceed to grant a declaration of title to the side that convinces and impresses the Judge. See the case of WACHUKWU & ANOR V. OWUNWANNE & ANOR (2011) LPELR-3466(SC). PER NIMPAR, J.C.A.
WHETHER OR NOT A PLAINTIFF WHO SEEKS TITLE TO LAND AND RELIES ON TRADITIONAL HISTORY MUST PLEAD THE ROOT OF HIS TITLE
A plaintiff who seeks title to land and relies on traditional history must, to succeed, plead the root of his title and the names and history of his ancestors and lead satisfactory evidence in proof thereof. See TOTAL (NIG) LTD V. WILFRED NWAKO (1978) 5 SC 1 and ELIAS V. OMO-BARE (1982) 5 SC 25 AT 57-58. Infact the three basic areas to cover are:
i. Plead who founded the land;
ii. Plead how the land was founded by what means or activity; and
iii. Particulars of the intervening owners through whom he claims and up to claimant.
In this issue under consideration, it must be stated though, that it has become trite that it is the duty of the Appellants as Plaintiffs who, claiming a declaration of title based on traditional history to plead their root of title and establish by evidence the traditional history so pleaded stating the name and history of their ancestors, right from the original founder of the land they assert ownership through to the last person Plaintiffs inherited from. I refer to TOTAL NIGERIA PLC V. NWAKO (1978) 5 SC, ELIAS V. OMO-BARE (1982) 5 SC 25 and FALEYE & ORS V. DADA & ORS (2016) LPELR-40297(SC). PER NIMPAR, J.C.A.
WHETHER OR NOT PARTIES AND THE COURT ARE BOUND BY PLEADINGS
The Appellant’s evidence is not in line with pleadings and parties, and the Court are bound by pleadings and therefore even if the Appellant tried to introduce his link, that would just be hanging because there is no pleading to support such evidence. See, LONGE V. FBN PLC (2010) LPELR-1793(SC) and KEDENGS V. TADI & ANOR (2017) LPELR-43035(CA) wherein apex Court held thusly:
“It is the law that evidence led on a fact not pleaded goes to no issue and should be disregarded. See Amobi Vs. Amobi (1996) 8 NWLR (Pt. 469) 638 and Allied Bank (Nig) Ltd Vs. Akubueze (1997) 6 NWLR (Pt. 509) 374.” Per ABIRIYI, J.C.A
Furthermore, any evidence given in cross-examination which is not supported by pleading also goes to nothing, see PUNCH (NIG) LTD & ANOR V. EYITENE (2001) LPELR-7038(CA) wherein the Court held thus:
“It is necessary to state that defence elicited from a party by his opponent during cross-examination cannot be used against the party if the material fact relating to the evidence was not pleaded. See George v. U.B.A. (1972) (Pt. 2) 1 All NLR 347 and George v. Dominion Flour Mill (1963) 1 SCNLR 117 (1963) 1 All NLR 71.” Per BA’ABA, J.C.A. PER NIMPAR, J.C.A.
THE POSITION OF LAW ON CUSTOMARY PURCHASE OF LAND
In any case, the law on customary purchase of land requires evidence of witnesses who witnessed the payment of the cost price and delivery of possession to the buyer, see ATANDA V. THE HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR (2017) LPELR-42346(SC) wherein the apex Court held thusly:
It is trite law that for sale of land under native or customary law to be valid, the following requirement must be met. These requirements are: (1) There must be payment of money or agreed consideration. (2) The transaction must be witnessed by witnesses. (3) The actual handing over of the land must be done in the presence of the same witnesses. See ADEDEJI V. OLOSO (2007) SCNJ 411. FOLARIN V. DUROJAIYE (1988) 1 NWLR (PT. 70) 351, COLE V. FOLAMI (1956) 1 FSC 66. PER SANUSI, JSC. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Ogun State sitting at Ota and delivered by HON. JUSTICE A. A. BABAWALE on the 18th day of December, 2013 wherein the lower Court dismissed the claim of the Claimant/Appellant in its entirety. The Appellant dissatisfied with the decision, filed a Notice of Appeal on dated 20th January, 2021 setting out 6 grounds of Appeal.
Facts leading to this appeal are straightforward and amenable to brief summary. The action was commenced vide a Writ of Summons dated 19th day of September, 1994 which was later on amended on dated 15th June, 2011. The Appellant’s case at the lower Court is that the land in dispute is a micro portion of a vast track of virgin land first settled upon by his progenitor (Akinoye) and after Akinoye, the land devolved onto his two sons namely Thomas and Fanibinu who died childless. However, Thomas was survived by eight children and he partitioned the land amongst the eight children namely: Boboye, Sadatu, Aina, Akinwale, Bolaji, Malomo, Asake and Ajoke Akeredolu. The land in dispute forms part of a large expanse partitioned to Akinwale Akeredolu (the original Claimant in this suit but now deceased and substituted by the present Appellant). The land adjacent and surrounding the land of Akinwale Akeredolu are settlements of the other children of Thomas Akeredolu and the whole vast area of land is known and referred to as Akeredolu village.
On the side of the Respondents, they claimed that they bought the land from Olofin Isheri Chieftaincy family who owns the entire land in that area their ownership is founded on Ogunfunminire Olofin who settled on the land over 600 years ago. They named the surviving children of Ogundunminire Olofin till date. The Respondent submits that after stating in chronological order the succession history of its vendor, they also gave evidence that their vendors have through different judgments of various Courts both in Lagos and Ogun States established their rights to the land both within, around and adjoining lands in that area which land falls between the boundary of Lagos and Ogun States. The Respondents further claimed that the Appellant’s progenitors were servants/workmen to their customary tenants, the Isheri people. The Appellant called 2 witnesses and tendered Exhibits CE1-CE5, the Respondents also called 2 witnesses and tendered Exhibits DE1-DE5. After due consideration, the trial Court dismissed the claims of the Appellant in its entirety. The Appellant aggrieved by the said judgment brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellant’s Amended brief settled by EDWIN ANIKWEM, Esq., is dated 20th January, 2021, filed on the same day but deemed on the 21st June, 2021. The Appellant distilled 4 issues for determination as follows:
1. Whether the trial Court properly evaluated and took due cognizance of the evidence and documents before the Court when it dismissed the claims of the Appellant. (Distilled from grounds 1 and 4)
2. Whether the Court below was right to have relied on evidence not pleaded and documents dumped on the Court. (Distilled from grounds 2 and 6).
3. Whether the trial Court did not err in law when it struck out the Claimant’s evidence in reply to the Statement of Defence. (Distilled from ground 5)
4. Whether the trial lower Court was right when it treated the evidence of the Appellant as that of his father (Late Akinwale Akeredolu) in spite of processes/evidence before the Court. (Distilled from ground 3)
The Respondents’ Brief settled by TUNDE AWOGBADE, ESQ., is dated 1st December, 2021 and filed on the same day but deemed on 2nd December, 2021. The Respondents distilled 3 issues for determination as follows:
1. Whether from the state of pleadings and the evidence tendered by both parties, the Appellant was entitled to the judgment of the trial Court.
2. Whether the trial Court relied on any unpleaded evidence and documents in arriving at its judgment in this matter.
3. Whether the trial Court was not right in striking out the Claimant’s evidence through his written statement on oath in reply to the 1st Defendant’s Statement of Defence.
Thereafter the Appellant filed a Reply Brief dated 22nd February, 2022 but deemed on the 14th March, 2022.
APPELLANT’S SUBMISSION
ISSUE ONE
In arguing this issue, the Appellant narrated the traditional history of his forefathers and submitted that in effect, the Appellant established his direct link with the land as follows: Akinoye begat Thomas Akeredoul and Fanibinu; Thomas Akeredolu begat Akinwale Akeredolu (the original Claimant) and Akinwale Akeredolu begat Tomide Akeredolu (the present Appellant). The Appellant relied on ALLI V. ALESINLOYE (2000) FWLR (PT. 15) 2610, OKOROJI V. ONWENU (2017) ALL FWLR (PT. 871) 1347 to support his submission of traditional history from first settlement.
Continuing, the Appellant relied on a Composite Plan (Exhibit CE1) and the Survey plan of the Respondents to establish his title and cited UKAEGBU V. NWOLO (2009) 1-2 SC, OFFODILE V. OFFODILE (2019) 16 NWLR (PT. 1698) 189 KAMALU V. UMUNNA (1997) 5 NWLR (PT. 505) 321 and ODUTOLA V. PAPERSACK (NIG) LTD (2006) 18 NWLR (PT. 1012) 470 to support his submission. The Appellant further submits that the Respondents failed to establish their connection to the land because the 1st Respondent claimed it purchased the land from the Olofin family and receipt was issued but failed to tendered it in evidence, therefore, the Appellant urge the Court to invoke Section 167(d) of the Evidence Act, 2011 against the 1st Respondent as held in WARE V. A.G. OF ADAMAWA STATE (2000) 8 NWLR (PT. 668) 229, CHEMIRON INT’L LTD V. EGBUJUONUA (2007) ALL FWLR (PT. 395) 444 and ADEDEJI V. OLOSO (2007) 5 NWLR (PT. 1026) 133.
The Appellant further analyzed each of the Exhibits tendered by the Respondents and stated as follows: Exhibit DE1 is a judgment which was based on the survey plan tendered by the Respondent which the trial Court had earlier rejected the survey plan, therefore it was wrong for the trial Court to rely on the said rejected survey plan as held in OLAWEPO V. SARAKI (2009) ALL FWLR (PT. 498) 256. Exhibit DE3 is the narration of traditional history of Olofin family which contradicts that of the 1st Respondent, however, the trial Court relied on the narration in the Exhibit as the original history not minding the inconsistency with the narration of the 1st Respondent and this makes the judgment of the lower Court perverse as held in EMIRATES AIRLINE V. NGONADI (2014) ALL FWLR (PT. 741) 1603 and FATUGA V. AINA (2008) ALL FWLR (PT. 398) 394. Exhibit DE4 is a CTC of the judgment in Suit No.: HCL/24/81 delivered by Delano, J on the 28th May, 1990 which specifically held that the land of the Olofin Chieftaincy family does not include Akeredolu Village, therefore, the Respondents are estopped from claiming that Akeredolu village forms part of the Olofin family land. The Appellant relied on IKPUKU V. IKPUKU (1991) 5 NWLR (PT. 193) 571, DASHI & ORS V. SATLONG & ANOR (2009) 1-2 SC (PT. II) and SALAMI & ANOR V. LAWAL (2008) 6-7 SC (PT. II) 242.
Furthermore, the Appellant submitted that he had discharged the onus placed on him by Section 136(1) of the Evidence Act, 2011, therefore, the acts of the 1st Respondent on the land amount to trespass which action qualifies the Appellant for award of damages and injunctive reliefs. The Appellant also urged the Court to resolve this issue in favour of the Appellant.
ISSUE TWO
The Appellant submits that the trial Judge relied on the evidence that is at variance with pleadings of parties and that is erroneous in law, referred to IKPEAZU V. OTTI (2016) 8 NWLR (PT. 1513) 38, and the trial Judge failed to properly evaluate and scrutinize the evidence/documents tendered but instead allowed the evidence that was not pleaded and gave value to the evidence that was not cogent. The Appellant referred the Court to UCHA V. ELECHI (2012) ALL FWLR (PT. 625) 237, WILCOX V. THE QUEEN (1961) 2 SCNCR 296, A.C.N. V. LAMIDO (2012) ALL FWLR (PT. 630) 1316, OMISORE V. AREGBESOLA (2015) ALL FWLR (PT. 813) 1673, APGA V. AL-MAKURA (2016) ALL FWLR (PT. 826) 471 and OKEREKE V. UMAHI (2016) ALL FWLR (PT. 833).
The Appellant reproduced paragraph 6 of the Reply to 1st Defendant’s Statement of Defence and argued that issues were joined on the relevance of the Exhibits tendered, these are Exhibits DE 1, DE 2, DE 3, DE 4 and DE 5 because Exhibit DE5 is a judgment delivered in Lagos State in respect of land situate in Lagos but the trial Judge failed to consider the merits of the argument instead, he placed reliance on the said Exhibits. The Appellant gave a full analysis of the Exhibits to submit that there is no nexus between these Exhibits and the land in dispute either through the pleadings or the evidence of the witnesses. The Appellant relied on OMEGA BANK PLC V. O. B. C. LTD (2005) 2 MJSC 26 to urge the Court to allow this appeal as being meritorious.
ISSUE THREE
In arguing this issue, the Appellant submits that it is trite that the Court looks at the substance and not the form of processes filed because relying on the form will occasion miscarriage of justice. The Appellant cited AJUWA & ANOR V. S.P.D.C. (2011) 12 S.C. (PT. IV) 118. Continuing, the Appellant reproduced the holding of the trial Court at pages 351 and 352 of the Record of Appeal to submit that witness statement on oath is not governed by the Evidence Act but by procedural rules as held in UDUMA V. ARUNSI (2012) 7 NWLR (PT. 1298) 55, LAMBERT V. OKUJAGU (2015) ALL FWLR (PT. 808) 652, ABUBAKAR V. ALI (2015) LPELR-40359(CA) and GOODWILL & TRUST INV. V. WITT & BUSCH LTD (2011) ALL FWLR (PT. 576) 517.
Furthermore, the Appellant submits that the Claimant’s Statement on Oath attached to the Reply to Statement of Defence was admitted without objection and even the Defendant used it for cross-examination, however, the trial Court expunged it at the judgment stage. Appellant argued that had the trial Court considered the evidence of the Appellant in reply to the Statement of Defence, the decision would have been otherwise. The Appellant urged the Court to resolve this issue in favour of the Appellant.
ISSUE FOUR
The Appellant submits that the Appellant’s father was the original claimant but later died and the Appellant replaced his late father, therefore by the father’s testimony, it is evidence that the allotment was made to the Appellant’s father notwithstanding the slip in his own deposition (see pages 338 and 339 of records). The Appellant reproduced the holding of the trial Court at pages 353 of record and relied on the cases of ONWUBUARIRI V. IGABOASOIYI (2011) ALL FWLR (PT. 569), OMISORE V. AREGBESOLA (SUPRA), IRONBAR V. FEDERAL MORTGAGE FINANCE (2009) ALL FWLR (PT. 494) 1549 to submit that there is no law against the use of evidence elicited under cross-examination by any party. The Appellant further relied on ASADU V. IFEANYI (2010) ALL FWLR (PT. 517) 736, ADEWUSI V. ADESHINA (2018) ALL FWLR (PT. 935) 1298, OKORONJI V. ONWENU (2017) ALL FWLR (PT. 871) 1347 and GEORGE V. OWODIONG-I (2018) ALL FWLR (PT. 952) 110.
Continuing, the Appellant argued that it was wrong for the trial Judge to rely on the slip in the deposition of the claimant to rob the Claimant of justice and had the trial Judge not misdirected himself on this issue, he would have found that the Appellant as Claimant claimed through his father. Furthermore, the Appellant submits that it is trite that the Claimant must succeed on the strength of his case, however, this does not apply where the case of the Defendant supports the case of the Claimant. The Appellant relied on AKINOLA V. OLUWO (1962) 1 ALL NLR (PT. II) 224, NWADIOGBU V. NNADOZIE (2001) 17 NWLR (PT. 649), NWAGBOGU V. IBEZIAKO (1972) VOL. II (PT. 1) ECSLR 335, NWAESEH V. NWAESEH (2000) 3 NWLR (PT. 649) 391 and MADUBUONWU V. NNALUE (1999) 11 NWLR (PT. 628) 673.
The Appellant urged the Court to upturn and reverse the judgment of the lower Court and restore ownership of the subject matter to the Appellant.
RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents submits that the Appellant avers that his progenitor is Akinoye but failed to establish the link between him and the said Akinoye, the alleged first settler and as settled by law, parties are bound by their pleadings and evidence but where the evidence is contrary to the averment in the pleadings, it will adversely affect the case of the party as held in EHIMARE V. EMHONYON (1985) 1 NWLR (PT. 2) 177, ABAYE V. OFILI (1986) 1 NWLR (PT. 15) 134 and ODI V. IYALA (2004) 8 NWLR (PT. 875) 283.
Continuing, the Respondents argued that the Appellant failed to show by evidence how the land devolved to him by inheritance, therefore, the evidence of the Appellant could not establish his title to land by traditional evidence and any party that relies on traditional history to prove his title must plead and prove: (i) who founded the land; (ii) how the land was founded; and (iii) particulars of the intervening owners through whom he claims as held in ANYANWU V. MBARA (1992) 5 NWLR (PT. 242) 388 and ALFA ATANDA AHMADU V. NGERI (2010) 43 WRN 52. Further on the issue, the Respondent submits that the Appellant relied on his evidence under cross-examination, however, any evidence not supported by pleadings is inadmissible as held in AKOMOLAFE & ANOR V. GUARDIAN PRESS LTD & ORS (2010) 24 WRN 1 and MTN NIGERIAN COMMUNICATION LTD V. CORPORATE COMM. INV. LTD (2019) VOL. 3 MJSC (PT. 1) 1.
The Respondents contends that the fact that the survey plan bears Akeredolu village is not an admission that the land belongs to the Claimant because the name of a community cannot mean the land belong to the people so called without proof. The Respondents relied on WASSA V. KARA (2015) ALL FWLR (PT.769) 1034 and COOKEY V. FOMBO (2005) FWLR (PT. 271) 25. The Respondents further contends that the failure of the 1st Respondent to tender the purchase receipt it pleaded was not fatal because the issuance of receipt is not known to land purchased or sold under customary law as held in COLE V. FOLAMI (1956) 1 FSC 66 and it is the duty of the Appellant to adduce sufficient and credible evidence to establish his claim for title. The Respondents cited IDUNDUN V. OKUMAGBA (SUPRA), NKADO V. OBIANO (1977) 5 NMLR 200, OYENEYIN V. AKINKUGBE (2010) 20 WRN 4, KODILINYE V. ODU (2003) 36 WRN 175 and AKINOLA V. OLUWO (1962) 1 SCNLR 352.
It was the argument of the Respondents that the Appellant failed to disclose any cause of action against the Respondents even though from the Appellant’s pleadings and evidence, he is claiming exclusive ownership of the land in dispute but failed to establish a better title than that of the Respondents. The Respondents placed reliance on RINCO CONST. CO. LTD V. VEEPEE IND. LTD & ANOR (2006) 17 WRN 119, DANIEL GARAN V. STAFF OLOMU (2014) ALL FWLR (PT. 711) 1514 and FASIKUN II V. OLURONKE II (1999) 2 NWLR (PT. 589) 1. Relying on IBULUYA & ORS V. DIKIBO & ORS (2011) 3 WRN 1, the Respondents submits that the trial Judge considered each issue raised by parties and evaluated the evidence both oral and documentary and the law is trite that where the trial Court properly evaluated evidence, the Appellate Court will not interfere and the invitation by the Appellant to reevaluate evidence is absurd. The Respondents also relied on ARE V. IPAYE (1990) 2 NWLR (PT. 132) 298 and IRIRI V. ERHURHOBARA (1991) 3 SC 1 and urged the Court to resolve this issue in favour of the Respondents.
ISSUE TWO
In arguing this issue, the Respondents submits that the Appellant failed to point out the documents that were not pleaded but admitted and the documents that were pleaded but not related to the land in dispute. The Respondents also submitted that the judgment pleaded was obtained by the 2nd to 5th Respondents (who are the 1st Respondent’s vendors) in respect of the adjoining lands to prove that they are the owners of the adjacent land because the judgment was given in their favour before the Ogun/Lagos High Court. The Respondents relied on IDUNDUN & ORS V. OKUMAGBA (SUPRA).
Continuing, the Respondents submitted that reliance on the said judgment by the trial Court could not have been in error in view of the averments in the statement of defence of the 1st Respondent that its vendors own all the land in the area which extended to Lagos State and shares a common boundary with Ogun State. The Respondents urged the Court to resolve this issue in favour of the Respondents and against the Appellant.
ISSUE THREE
The Respondent submits that the trial Judge was right in striking out the document that is purported to be the written statement on oath because it was unnamed, no identity nor particulars of the deponent, the Court had no clue as to the person that appended his signature on the document and the Appellant failed to point out the evidence attached to the rejected written statement on oath, therefore, the trial Court did not misdirect itself nor was there a miscarriage of justice. The Appellant relied on TAR & 2 ORS V. MIN. OF COMM. IND & 2 ORS (2019) ALL FWLR (PT. 1002) 893, JADESINMI V. EGBE (2003) 36 WRN 79, ORO V. FALADE (1995) 5 NWLR (PT. 396) 385 and OJOGBUE V. NNUBIA (1972) 1 NLR 226.
The Respondent relied on NIGERIA BREWERIES PLC V. DUMUJE & ANOR (2015) ALL FWLR (PT. 807) 513, OGUNTAYO V. ADELAJA (2009) 15 NWLR (PT. 116) 159 and DAGACI OF DERE V. DAGACI OF EBWA (2006) ALL FWLR (PT. 306) 786 to define and explain the concept of miscarriage of justice and urge the Court to resolve this issue in favour of the Respondent and to uphold the judgment of the lower Court.
APPELLANT’S REPLY BRIEF
On issue one, the Appellant submitted that by paragraphs 4.03 to 4.15 of the Appellant’s brief and pages 31, 32, 34 and 35 of the Record, the Appellant has established his family chain/link and cannot be defeated by the Respondents’ technicalities. Again, the Appellant argued that the 1st Respondent’s failure to tender the purchase receipt is fatal to its case. The Appellant placed reliance on the case of IDUDUN V. OKUMAGBA (1976) 9-10 S.C and UDEAGHA V. OMEGARA (2010) ALL FWLR (PT. 542) 1785.
On issue two, the Appellant argued that the evidence placed before the trial Court was not properly evaluated because the entire evidence of the Respondents’ were not proved yet the trial Court relied on it which made the trial Court’s judgment perverse, therefore, it will be proper for the Appellate Court to reevaluate the evidence. The Appellant relied on JAMES V. I.N.E.C (2015) ALL FWLR (PT. 787) 652 and F.B. V. OZOKWERE (2014) 3 NWLR (PT. 1395) 439.
On issue three, the Appellant submits that the document was headed as CLAIMANT’S WRITTEN STATEMENT ON OATH IN REPLY TO 1ST DEFENDANT’S STATEMENT OF DEFENCE DATED 27TH MARCH, 2011 and there is only one Claimant, therefore it is treacherous to say the Deponent is unnamed and unidentified. The Appellant referred the Court to TAR & ORS V. MIN. OF COMM & IND & ORS (2019) ALL FLWR (PT. 1002) 893, UDUMA V. ARUNSI (2012) 7 NWLR (PT. 1298) 55 and UDEAGHA V. OMEGARA (2010) 11 NWLR (PT. 1204) 168 to support his submission. Continuing, the Appellant submits that the rejection of the Appellant’s statement on oath has occasioned miscarriage of justice.
RESOLUTION
Upon a careful examination of the Notice of Appeal, the Record of Appeal and the respective briefs of both learned Counsel, the Court considers it expedient to adopt the issues donated by the Appellant who is the initiator of the appeal, doing so would allow the Court resolve all areas of dissatisfaction with the judgment of the lower Court. I shall consider issue one and two together because they both revolve around evaluation of evidence.
ISSUE ONE & TWO
The Appellant under issue one challenged the decision arrived at in the judgment which is supported by the evidence before the lower Court. The Appellant contended that the trial Judge did not evaluate evidence before him as expected. It is the traditional history that the trial Judge found not established according to the standard expected and thus not proved. It will be necessary to set out the standard of proof of title to land by traditional history. For a start there are 5 settled methods of proof of title to land, see SORONNADI & ANOR V. DURUGO & ANOR (2018) LPELR-46319(SC) wherein the apex Court held thusly:
“An accepted principle in the establishment of ownership of land which has now become trite is encapsulated in the case of Idundun v Okumagba (1976) 1 NMLR 200; (1976) 9-10 SC 224 where the Supreme Court held that ownership of land in dispute can be proved by any of the five ways namely- (i) By traditional history (ii) By production of title document (iii) By acts of ownership (iv) By acts of long possession (v) By proof of possession of the connected land…I place reliance on Honika Sawmill v Hoff (1994) 2 SCNJ 86 at 97-98 & 106; Temile v Awani (2001) 6 SCNJ 86 at 97-98 & 106; Temile v Awani (2001) 6 SCNJ 190 at 206; Okposin v Assam (2005) 7 SCNJ 442 at 459-460; Nwosu v Udeaja (1990) 1 NWLR (Pt.125) 188 at 218.” Per PETER-ODILI, J.S.C
Traditional history is one of the ways of proving title to land as settled in the age long decision in IDUNDUN V. OKUMAGBA (1976) NMLR 200. Traditional history is all about evaluating belief on the basis of handed down story and the presumed credibility.
A declaration of title to land is granted at the discretion of the Judge after seeing and hearing both sides in the suit. To succeed a party must plead and establish by evidence and show how the land devolved and eventually came to be owned by him. The party needs to narrate a continuous chain of devolution without a break. At the end of the oral evidence the Judge is to decide which of the two are telling the truth and proceed to grant a declaration of title to the side that convinces and impresses the Judge. See the case of WACHUKWU & ANOR V. OWUNWANNE & ANOR (2011) LPELR-3466(SC).
A plaintiff who seeks title to land and relies on traditional history must, to succeed, plead the root of his title and the names and history of his ancestors and lead satisfactory evidence in proof thereof. See TOTAL (NIG) LTD V. WILFRED NWAKO (1978) 5 SC 1 and ELIAS V. OMO-BARE (1982) 5 SC 25 AT 57-58. Infact the three basic areas to cover are:
i. Plead who founded the land;
ii. Plead how the land was founded by what means or activity; and
iii. Particulars of the intervening owners through whom he claims and up to claimant.
In this issue under consideration, it must be stated though, that it has become trite that it is the duty of the Appellants as Plaintiffs who, claiming a declaration of title based on traditional history to plead their root of title and establish by evidence the traditional history so pleaded stating the name and history of their ancestors, right from the original founder of the land they assert ownership through to the last person Plaintiffs inherited from. I refer to TOTAL NIGERIA PLC V. NWAKO (1978) 5 SC, ELIAS V. OMO-BARE (1982) 5 SC 25 and FALEYE & ORS V. DADA & ORS (2016) LPELR-40297(SC)
To reassess how the trial Judge arrived at judgment, we must start from the pleadings, the 2nd Amended Writ of Summons and Statement of Claim dated 15th June, 2011 was filed on the 17th June, 2011 at pages 58 to 70 of the Records of Appeal and there is no pleading of how the land devolved onto the Appellant. That defect defeated the claim and the problem is not that of poor evaluation but deficient pleadings. The duty of evaluation is primarily that of the trial Judge and unless it can be shown that he failed to carry out that duty, the Appellate Court shall not intervene, see ABIODUN V. STATE (2013) LPELR-20343(SC) wherein the apex Court held thus:
“It is settled law that it is the primary function of the trial Court or Tribunal to evaluate evidence placed before it, before arriving at a conclusion/decision. It is only where and when the Judge/Court fails to evaluate the evidence at all or properly that an appellate Court can intervene and in itself evaluate or re-evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve the credibility of witnesses but against the non-evaluation or improper evaluation of the evidence adduced, an appellate Court is in a better position as the trial Court to do its own evaluation – see Doma v. Ogiri (1998) 3 NWLR (pt.541) 246 at 267; Abisi v. Ekwealor (1993) 6 NWLR (pt.302) 643.” Per ONNOGHEN, J.S.C
I do not see any defect in evaluation that should make me disturb the findings of the trial Judge.
The next burden for the Appellant is that he must support his pleadings with cogent evidence. The Appellant called two witnesses, the legal requirement for a declaration, the Claimant must present credible evidence that will convince the Court and not rely on the weakness of the defence, see TANKO V. ECHENDU (2010) LPELR-3135(SC) wherein the apex Court held thus:
“The point must be stressed that in a claim for declaration of title, the onus of proof lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to the relief claimed. The plaintiff must rely on the strength of his own case and not on the weakness of the defence. If this onus is not established, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant unless, of course, where the defendant’s case itself supports the plaintiff’s case and contains evidence on which the plaintiff is entitled to rely on, in which case the plaintiff will be fully entitled to rely on such evidence. See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Akinola v. Oluwo (1962) 1 ALL NLR (Pt. 2) 224 at 225; Oduaran v. Asarah (1972) 1 All NLR (Pt. 2) 137; Woluchem v. Gudi (1981) 5 SC 291. See too Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524 at 536.” Per IGUH, J.S.C
The contention of the Appellant that the defence was weak is therefore not the law as he has the burden of initial proof, the reliefs being declaratory. The Appellant called two witnesses and the summary of the witnesses as crafted by the trial Judge is thus:
i. CW2 told the Court that his forefathers were customers/tenants of the Appellant for over a 100 years and this the trial Judge found to be contrary to the evidence of the Appellant who told the Court his forefathers came from Ondo State and he still goes back to Odosida, Ondo State. And that when the land was partitioned, he was not born, that is by 1953.
ii. The evidence of the claimant was found contradictory and fraught with gaps which were not filled by evidence as expected that there should be no gaps in the evidence of devolution from the person who cleared the land and how it got to the Appellant. The trial Judge found that Appellant has no traditional history of how his forebears got to the land and settled. Appellant also admitted that his great grandfather came from Ondo and how he settled on the land was not established. This is a yawning gap that cannot be overlooked and is contrary to the settled method of proving title by traditional history.
The Appellant’s evidence is not in line with pleadings and parties, and the Court are bound by pleadings and therefore even if the Appellant tried to introduce his link, that would just be hanging because there is no pleading to support such evidence. See, LONGE V. FBN PLC (2010) LPELR-1793(SC) and KEDENGS V. TADI & ANOR (2017) LPELR-43035(CA) wherein apex Court held thusly:
“It is the law that evidence led on a fact not pleaded goes to no issue and should be disregarded. See Amobi Vs. Amobi (1996) 8 NWLR (Pt. 469) 638 and Allied Bank (Nig) Ltd Vs. Akubueze (1997) 6 NWLR (Pt. 509) 374.” Per ABIRIYI, J.C.A
Furthermore, any evidence given in cross-examination which is not supported by pleading also goes to nothing, see PUNCH (NIG) LTD & ANOR V. EYITENE (2001) LPELR-7038(CA) wherein the Court held thus:
“It is necessary to state that defence elicited from a party by his opponent during cross-examination cannot be used against the party if the material fact relating to the evidence was not pleaded. See George v. U.B.A. (1972) (Pt. 2) 1 All NLR 347 and George v. Dominion Flour Mill (1963) 1 SCNLR 117 (1963) 1 All NLR 71.” Per BA’ABA, J.C.A
The lower Court found that paragraphs 7 and 11 of the Appellant’s written Statement on Oath left out the connection between him and the listed children of the AKINTOYE who settled on the land. The Respondents highlighted the failure of the Appellant to link himself to the said original settler, Akintoye. The paragraphs states thus:
“7. Fanibunu died in 1994 without any issue but Thomas Akeredolu who died in 1940 was survived by (1) Boboye Akeredolu (2) Sadau Akeredolu (3) Aina Akeredolu (4) Akinwale Akeredolu (5) Bolaji Akeredolu (6) Malomo Akeredolu (7) Asake Akeredolu (8) Ajoke Akeredolu.
11. Both the original settler, Akintoye and his sons Thomas Akeredolu and Fanibinu died on the land and were buried there. Their tombs are still on the land till this day. For over fifty years, the settlement that grew up on the claimant’s land including the land in dispute has always been referred to as Akeredolu village after Thomas Akeredolu the father of the Claimant.”
As observed by the trial Judge, the Appellant was not connected to the long line of descendants. He forgot to state where he falls within the list of those who settled on the land from AKINTOYE to the deceased Akinwale. He did not even state his relationship with his father. The gap is the main reason the claim failed. He did not show that he inherited the land from his father to allow tracing to the said Akintoye who is the progenitor. In a claim for declaration, it is necessary to give convincing evidence without gaps.
Credible evidence means evidence worthy of belief and evidence to be worthy of credit from a credible source and credible by itself, by which means it should be natural, reasonable and probable in view of the transaction which it describes or to which it relates as to make it easy to believe, see Black’s Law Dictionary, 6th Edition.
The trial Judge placed the Appellant’s evidence against the history of the Respondents who have been on the land for over 600 years and have shown long possession of the vendors. The lower Court believed the version of the Respondents because it is also backed by subsisting judgments.
The lower Court found that the traditional history evidence led by the Appellant had gaps which affected the claim and could not be overlooked, he said on the balance of probability, the case of the Appellant is not weighty enough to deserve judgment. The relevance of Exhibit CE4 which is a judgment in favour of the Appellant will still suffer because of the deficiency in pleadings.
The Appellant contended that Exhibits tendered by the Respondents were through their witnesses and not done personally through the makers, it is trite that the burden of proof can be discharged by a credible and competent witness whose testimony proves the pleadings. There is no rule or law that says a party must testify personally in proof of his case, see AKINNOLA V. OLAWOYE & ORS (2020) LPELR-50537(CA) wherein the Court held thusly:
“…there is no law that a Claimant must testify personally. If he can prove his claim through a witness who is not a party so be it.” PER MAHMOUD, JCA
The Appellant further challenged the nexus the Respondents had with the land in dispute, as stated earlier, the burden of proof of the reliefs sought rested squarely on the Appellant and once he is able to prove his case, the Court will enter judgment in his favour but where he fails, his claim shall be dismissed. The standard of proof is on the preponderance of evidence and it oscillates, but must be established before the lower Court, both parties’ pleadings showed they had some connection with the land and therefore, it is the party with the weightier evidence that will win, the evidential burden on the Respondent does not arise until the Claimant has led some evidence which requires rebuttal.
The Appellant also raised the issue of identity of the land, however, the issue of identity arises from the traverse by the Respondents and must be so done in the statement of defence, see GBADAMOSI V. OLAITAN DAIRO (2007) LPELR-1315(SC) wherein the apex Court held thusly:
“It is also now settled law that requires no citation of any authority, that the identity of land in a land dispute will only be in issue if and only if the defendant in his statement of defence makes it one.” PER MUSDAPHER, JSC
There was no dispute raised on the identity in the Respondent’s statement of defence and the Claimant cannot raise identity unilaterally. The land in dispute was known to all parties therefore and Exhibit CE1 shows the land in dispute was not challenged by the Respondents.
On the failure to tender purchase receipt issued to the Respondents, though the law is trite that documents are not known to Customary Sale of land, the Appellant preoccupied himself with what the Respondents should have done or failed to do not realizing that he is the Claimant and the burden is more on him to establish his right to a declaration of title and it cannot be done on the weakness of the defence.
In any case, the law on customary purchase of land requires evidence of witnesses who witnessed the payment of the cost price and delivery of possession to the buyer, see ATANDA V. THE HON. COMMISSIONER FOR LANDS AND HOUSING, KWARA STATE & ANOR (2017) LPELR-42346(SC) wherein the apex Court held thusly:
It is trite law that for sale of land under native or customary law to be valid, the following requirement must be met. These requirements are: (1) There must be payment of money or agreed consideration. (2) The transaction must be witnessed by witnesses. (3) The actual handing over of the land must be done in the presence of the same witnesses. See ADEDEJI V. OLOSO (2007) SCNJ 411. FOLARIN V. DUROJAIYE (1988) 1 NWLR (PT. 70) 351, COLE V. FOLAMI (1956) 1 FSC 66. PER SANUSI, JSC
The Respondents had no duty doing that when the Appellant’s case was not established. The trial Judge was not convinced and thus dismissed the claim. It is settled law that the grant of declaratory relief is largely discretional, see LADOJA V. INEC (2007) LPELR-1738(SC) wherein the apex Court held thusly:
The grant of a declaratory relief, it must be noted, is discretionary. PER ADEREMI, JSC
The trial Judge agreed that documents are not known to customary purchase of land. The fact that the receipt was not tendered makes it irrelevant to the case because the Respondents did not counter-claim for title to land so they have nothing to prove.
On the judgments tendered as Exhibits DE2 – DE5, the Appellant contended that they should not be relied upon because the location of the land it covered vis-Ã -vis the land in dispute was not stated. I have viewed the said Exhibit DE2-DE5 and indeed the decisions reached therein are clear but cannot be said to relate to the land in dispute, they are therefore not relevant to the case of the Appellant. The only Exhibit that mentioned the land called Akeredolu is Exhibit CE5 which was tendered by the Appellant as Claimant. It is a public Notice stating that Suit No.: HCL/24/81 between SAIDI OGUNDIMU & 2 ORS Vs BELLO KUSUSMU & 5 ORS VS CHIEF SUBERU AINA ARO V OBA ISHOLA TAIWO OLOWO II & 5 ORS was decided to the effect that the land from time immemorial belonged to Olofin family, they were declared the owners of the land comprising a number of villages namely: Iganwun, Otun, Adiyan-Oke, Ajokidero, Modo Ishasi, Ajuwon, Ojo, Ogundele, Olori, Akinosi, Alagbole, Ayanwoele, Ogunlowo, Akereodolu No.1, Akeredolu No.2, Lajumoke, Haramo, Ekun, Alausa, Akinbo, Asanjon, Onibudo, Mosa, Lanbe, Laderin, Koto, Koye, Kampala, Megi, Aga, Legun, Odebiyi, Matogbun, Maidan, Giwa, and Ikereku in Ogun State of Nigeria.
The Appellant did not explain whether Akeredolu village named in Exhibit CE1 refers to his own Akeredolu village or not and whether there were other villages so named. It amounts to a presumption to say that the village name Akeredolu refers to Akeredolu village of the Appellant. The Appellant should have been more diligent in presenting detailed evidence in support to avoid any gaps.
Ultimately, I do agree that the trial Judge failed to evaluate evidence before the Court. The Appellant failed to do the needful for a declaratory relief. The Court cannot do in the recess of its chambers what a party should have done for himself in the open Court.
The Appellant questions the propriety of the lower Court’s reliance on evidence not pleaded and documents dumped on the Court. He submitted that lower Court used or relied on Exhibits not pleaded, he referred to Exhibits CE4 as exception and argued that the copies of judgments had nothing in common with the land in dispute. Indeed, I find that Exhibits DE2-DE5 have nothing in common with the land in dispute and it is only the public notice which mentioned the name of the area where the land in dispute is situated. The Appellant cannot contend that the documents were not pleaded because even by its own showing in its Reply to statement of defence, by paragraph 6 of the reply it reacted to the pleaded judgment in Suit No. HCL/24/81. It is therefore wrong to submit that the judgment was not pleaded. The Public Notice issued as HCL/24/81 was also pleaded, the suit No. LD/2217/81, HCT/92/95, ID/3459/95 were all mentioned in the Statement of Defence. Therefore, issues were joined on Exhibit DE1-DE5. The documents were pleaded, they cannot be said to be outside the pleadings of the parties. The Appellant can rightly contend their relevance and applicability of the documents but not to say they were not pleaded. They were duly pleaded but have no nexus to the land in issue. It was wrong to use the judgments in arriving at judgment. There is no evidence tying the Exhibits to the land.
The Appellant argued that where the evidence of traditional history is weak, the claimant can rely on numerous acts of ownership and relied on UKEAGBU V. NWOLO (2009) 1-2 S.C. (Pt.1) 21 at 57, the question is what other numerous acts of ownership did the Appellant present before the Court. The tendering of a composite survey plan is not enough, to prove numerous acts of ownership the law restated in AWODI & ANOR V. AJAGBE (2014) LPELR-24219(SC) said thus:
“It was held by this Court in ONWUGBUFOR V. OKOYE (SUPRA) that a party who relies on acts of possession and ownership of the land in dispute as evidence and in proof of his title to land must, to succeed, establish that such acts not only extend over a sufficient length of time but also that they are numerous and positive enough to warrant the inference of exclusive ownership of such land. See IDUNDUN V. OKUMAGBA (supra).” Per OKORO, J.S.C
The only acts of possession come from CW1 who said they were allowed to farm on the land by the Appellant’s father. The Appellant has not explained what other activities his father carried out on the land since the time the Appellant said the land was partitioned. He could have also called any other family member to confirm his own evidence, for example boundary witnesses.
On admission against interest, the principle was explained in the case of ODUTOLA & ANOR V. PAPERSACK NIG. LTD (2006) LPELR-2259(SC) thus:
“An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it.” Per TOBI, J.S.C
The apex Court in another case held as follows:
“Where there are admissions by a party against his interest such admissions will be admissible against the person [Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248, 260; S.20(3)(a) Evidence Act]. This is not to say, however, that admission per se is conclusive proof of the entire matter in litigation, but it stands firmly on the subject of the admission against the person making it. Also, it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it. [Ojiegbe & Ors. v. Okwaranyia & Ors (1962) 2 SCNLR 358. (1962) 1 All NLR 605; Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394) 153, 171; Seismograph Services (Nig) Ltd. v. Eyuafe (1976) 9-10 SC.135].” See KAMALU & ORS V. UMUNNA & ORS (1997) LPELR-1657(SC).
Also in the case of EFETIROROJE & ORS V. OKPALEFE II & ORS (1991) LPELR-1024(SC) wherein the apex Court held thusly:
“In an action for declaration of title, the plaintiff may discharge the onus of proof either by adducing cogent evidence of tradition, or other evidence of positive and numerous acts of ownership demonstrating unequivocal exercise of dominion, over the land.” Per KARIBI-WHYTE, J.S.C
The question is whether the said plan at page 108 was tendered before the trial Court. A document frontloaded but not tendered in evidence cannot be evidence before the Court. The Court could not have considered it and therefore it cannot be considered as admission against interest since it was not tendered formally as evidence. The Appellant cannot also contend that the Respondents withheld evidence which if produced would go against them, no evidence was withheld, the claim is for declaration for title which places the burden on the Claimant and unless he discharges that responsibility, he cannot move further. It has been held that the Appellant did not name himself as the last on the line of succession so as to connect him to the land in dispute. It is a serious flaw that cannot be remedied by Counsel arguments.
In the same vein, a document rejected cannot be considered by the Court or the parties because it is not part of the evidence before the Court. The Appellant cannot bring in extraneous materials which were not part of the evidence before the trial Court and expect the Court to consider it in the determination of this appeal. If Exhibit DE1 has no foundation, then, it will be hanging and therefore irrelevant.
I resolve issue one and two against the Appellant.
ISSUE THREE
This touches on the Appellant’s Written Statement on Oath in reply to statement of defence which was struck out by the lower Court at judgment stage on the basis that it was incompetent and failed to comply with the Evidence Act on Affidavits. The trial Judge held that a written statement is an affidavit. Without wasting precious judicial time, a written statement on oath is not an affidavit and they are not governed by the same provisions.
Furthermore, the difference between the two has been made clear, see ETENE V. NYONG & ORS (2011) LPELR-9261(CA) where the Court held thusly:
“… It must be stated immediately that a witness statement on oath is different from an affidavit. An affidavit is a statement of fact which the maker is deponent swears, to be true to the best of his knowledge. It is a Court process in writing, deposing to facts within the knowledge of the deponent. It is documentary evidence which the Court can admit in the absence of any unchallenged evidence. AKPOKINIOVO V. AGAS (2004) 10 NWLR (PT. 881) 394. Whereas a witness statement on oath is not evidence.
Before a witness statement would be taken as evidence the witness would be sworn in, in Court. He will state his name, trade or profession and gives his address. He thereafter adopts his written statement and is cross-examined on it before it can be admitted in evidence. It is therefore wrong for the Tribunal to equate a witness statement with an affidavit as envisaged by S.90 of the Evidence Act. This issue is also resolved in favour of the Appellant.” PER NDUKWE-ANYANWU, JCA.
It can therefore be conclusively stated that the two are not the same and therefore the trial Judge erred in his conclusion that a written statement on oath is an affidavit. The statutory provision allegedly flouted is Section 117(B) of the Evidence Act which provides for the form an affidavit should take. It provides as follows:
“117(1): Every affidavit taken in a cause or matter shall
(B) state the full name, trade, or profession, residence and nationality of the deponent.”
It is indubitable that the provision is specific on the form the affidavit should take. The Witness statement on oath could be struck out for other impeaching factors particularly when it was not adopted by the deponent in the witness box.
The Respondent contended that the statement lacked relevant particulars like name of deponent unidentified, no occupation, no address, no religion and nationality. The statement could be said to be anonymous and could not be ascribed to the Appellant if it is considered outside the witness box and the witness who adopted it. However, it was adopted by the Appellant after being sworn before the Court. The Respondent also submitted that the Appellant couldn’t even identify the signature on the document as his own but the statement was adopted and the Respondents did not raise any objection at the point the statement was adopted. I have viewed the statement at pages 292 -294 of the Records of Appeal and indeed it lacks some essential particulars of a witness statement on Oath and it appears more like pleading and not a witness statement on Oath. The fact is that the title clearly said it was Claimant’s written statement on oath and was adopted by the claimant in the witness box. It is trite that a Witness Statement on Oath that is defective could still be used when it is adopted. See the decision of OGUNWUMIJU, JCA in UDEAGHA V. OMEGARA (2010) 11 NWLR (PT. 1204) 16 where the Court held:
“…the subsequent adoption of the Statement in open Court cures whatever defect.”
In this case, the Judge was wrong in applying the statutory requirements for a valid affidavit to a witness statement on Oath. In fact, the act of striking out the statement was totally wrong. The Respondents cross-examined the Appellant on the said statement without any objection. The Respondents cannot raise any objection after the statement has been adopted, see GOODWILL & TRUST INV. V. WITT & BUSCH LTD (2011) LPELR-1333(SC) where the apex Court explained a distinction between evidence that admissible upon certain conditions and evidence that is not admissible by law in that form, it said:
“…In a trial by a Judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions. In the former class of cases, the evidence cannot be acted upon even if parties admitted it by consent and the Court of Appeal will entertain a complaint on the admissibility of such evidence by the lower Court (although the evidence was admitted in the lower Court without objection), in the latter class of cases; if the evidence was admitted in the lower Court without objection or by consent of parties or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial Court to act on it and the Court of Appeal will not entertain any complaint on the admissibility of such evidence.” Per MUKHTAR, J.S.C.
The Court in a number of decisions held that a defect in the form of a Written Statement on Oath, once it is sworn before a person duly authorized is a mere irregularity which could be overlooked. See DEMROWL INTERNATIONAL COMPANY LIMITED V. GUARANTY TRUST BANK PLC (2019) LPELR-48967(CA) wherein the Court held thusly:
“I am of the view that to hasten to discard the written statements on oath duly executed before the registrar of the Court in registry in person just because the words specified in the Oath Act will indeed bother on technicality which will cause an injury to the case of the Claimant. Rules of Court are meant to be obeyed no doubt but the Court is not to be bound by the rules as to as act as a zombie without the discretion and ability to interpret the rules taken into cognizance the need for the Courts to so substantial justice.” I believe that PW1 having adopted his witness statement on oath after being sworn again in Court has cured the defect of any irregularity that might have occurred in the statement of oath.” PER NDUKWE-ANYANWU, JCA
The trial Court erred in expunging the Claimant’s Statement on Oaths however, the Appellant failed to establish and show the miscarriage of justice, if any, that was occasioned by the act of striking out the Claimant’s Statement on Oath. That piece of evidence was not evaluated by the trial Court in arriving at the judgment. The law is trite that in such a situation, the Appellant should go further to show what the effect would have been if the evidence was considered. This is lacking here. It is not enough to allege a miscarriage of justice, the party must proceed to show the effect the error made to the case of the party, see DARMA & ORS V. MUSTAPHA (2014) LPELR-23734(CA) wherein the Court held thusly:
“It is essential to understand that the concept of miscarriage of justice is not a speculative concept and it is not considered in the abstract but in concrete terms based on the peculiar facts of each case. Thus, a party alleging miscarriage of justice, must show in clear and real terms the in justice or injury he suffered on the face of the record…” PER ABIRU, JCA
Failure to establish miscarriage of justice has watered down the effect of the error made by the trial Court as the Court cannot do that for the party. A positive resolution of the issue has no value to the Appellant.
I resolve Issue 3 in favour of the Appellant.
ISSUE FOUR
The Appellant contends that the lower Court treated the evidence of the Appellant as that of his father in spite of the substitution allowed by the lower Court. The Appellant’s Counsel admits to a slip or error in the Appellant’s deposition where he referred to his father as himself and that answers given under cross-examination should aid the Respondents’ case. The aim and purpose of a cross-examination was restated in the case of STEPHEN EMOGA V. THE STATE (1997) LPELR-1134(SC), JAMES SIMON V. THE STATE (2017) LPELR-41988(SC) and OKORO V. STATE (2012) LPELR-7846(SC) wherein the apex Court held:
“I must state that examination in chief is an opportunity to state the facts of his case by the plaintiff and his witnesses. Cross-examination is to test the correctness of the testimony of the plaintiff and his witnesses, while re-examination is another chance to clarify facts but not an opportunity to restate the testimony given in evidence in chief all over again.” Per RHODES-VIVOUR, J.S.C
And SHMO & ORS V. ABUUL (2020) LPELR-49947(CA) and AKOMOLAFE V. GUARDIAN PRESS LTD (2010) LPELR-366(SC) wherein the apex Court held thus:
“…it is also settled law that evidence elicited from a party or his witness(es) under cross-examination which goes to support the case of the party cross-examining, constitute evidence in support of the case or defence of that party. If at the end of the day, the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence. In such a case, one cannot say that the party called no witnesses in support of his case or defence, as the evidence elicited from his opponent under cross-examination which is in support of his case or defence constitutes his evidence in the case. The exception to this is that the evidence so elicited under cross-examination must be on facts pleaded by the party concerned for it to be relevant to the determination of the question/issue in controversy between the parties; per Onnoghen, JSC (as he then was). Therefore, the Respondent, whose Counsel cross-examined the Appellants’ witnesses, could rely on the evidence elicited from cross-examination in establishing his case.” Per OTISI, J.C.A
Also the erudite jurist NWEZE, J.S.C in the case OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803(SC) held that:
“It has long been settled that evidence obtained in cross-examination on matters that are pleaded, that is, on matters on which issues were joined (as was the case at the Tribunal), is admissible, Adeosun v. Governor of Ekiti State (2012) All FWLR (Pt. 619) 1044, 1059; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338, 351; 353-354.
In effect, the argument that the third respondent had no evidence before the trial Tribunal is incorrect. That argument would have been impregnable if the pieces of evidence Chief Awomolo, SAN, elicited from the petitioners’ witnesses in cross-examination were not supported by the pleading of either party, Punch Nigeria Ltd v. Eyitene (2001) 17 NWLR (Pt. 741) 228; SPDC v. Anaro (2000) 10 NWLR (pt 675) 248; Ita v. Ekpeyong (2001) 1 NWLR (Pt. 695) 587; Isheno v. Julius Berger Nig Plc (2003) 14 NWLR (Pt. 840) 289, 304; Ojo v. Kamalu (2005) 18 NWLR (Pt. 958) 523, 548; Woluchem v. Gudi (1981) 5 SC 291, 320; Ewarami v. ACB Ltd. [1978] 4 SC 99, 108; Dina v. New Nigeria Newspapers Ltd.[1986] 2 NWLR (Pt. 22) 353; Aguocha v. Aguocha (1986) 4 NWLR (Pt. 37) 366, Okwejiminor v. Gbakeji [2008] All FWLR (Pt. 408) 405.
The basic point on evidence given under cross-examination is that it is valid and can be used by either party as long as it is supported by pleadings. In this case, the Appellant did not plead that upon his father’s demise, the land devolved to him. Therefore, whatever evidence he has in that regard is not based on pleadings and cannot be relied upon by the Court. Civil claims are fought on pleadings which are like framework upon which to use the evidence of building blocks to get a structure standing.
The Appellant contended that the trial Court ignored the substitution and its legal implication when it failed to adopt the evidence of the claimant as that of the substituted Appellant. That the conclusion that the Appellant failed to plead and include himself as part of the traditional history defeated the claim and that the age of the Appellant did not tally with when the land was partitioned in 1953. Substitution means to put a person in place of another or to take the place of another. The principle of substitution of a deceased party is to give the substitute the same cause of action which the substituted party had at the date when the writ in the action was issued. The Court in RE- APEH & ORS V. PEOPLES DEMOCRATIC PARTY & ORS (2017) LPELR-42035 (SC) held thus:
“The extant position of the law with respect to substitution of parties in litigation, was more recently re-stated thus: “I think it is apt for me at this stage, to remind my noble Lords, in a concise manner the general principles of the law relating to substitution. When one puts something by way of replacement or change of another, whether a person or a thing, that would amount to substitution. The law may permit a person to substitute another in a law suit (including appeal) where there is a genuine case of death, bankruptcy, assignment, transmission or devolution of interest or liability of a party to the suit or appeal, where the need to substitute is obvious in fact and in law.” Per Muhammad, J.S.C.,
The point to make is that the Appellant stood in the place of the deceased original claimant. It is the Appellant who amended his statement of claim that should extend his relationship with the cause of action. He cannot give evidence as if it was the deceased person testifying without including himself.
The Appellant stands in the place of the original deceased but the effect is that the Appellant must stretch the interest of the deceased to himself. He cannot expect the lower Court to assume and do the replacement particularly as it concerns the evidence. if the Appellant did not testify then he can of course stand to benefit the evidence of the deceased party, that is if the party testified before he died but, in this case, the deceased died before he could testify, so the Appellant automatically stood in his place and should have stretched his pleadings and evidence to include his interest as beneficiary of the land in question since he is now the Claimant upon his father’s death. How can a claimant not connect himself to the subject matter of the claim in a declaratory relief? You cannot be a named party in a suit and expect the Court to make assumptions towards establishing your interest as beneficiary when the evidence is deficient. The lower Court cannot do what the Appellant’s Counsel is suggesting.
The argument of the Appellant on the effect of substitution is flawed and misconceived. It is the duty of a Claimant to give evidence that will give legitimacy to his claim. I resolve issue four against the Appellant.
Having resolved 3 issues donated for resolution against the Appellant, the one resolved in his favour has no effect and consequently, the appeal lacks merit and is hereby dismissed. The judgment of the HON. JUSTICE A. A. BABAWALE delivered on the 18th day of December, 2013 is hereby affirmed.
Parties to bear their respective costs.
FOLASADE AYODEJI OJO, J.C.A.: I have read in advance, the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I agree that the appeal lacks merit and should be dismissed.
It is trite law that in order to establish the traditional history of land relied on as root of title, a Claimant must plead the names of the founder and those after him up until the last successor(s). He must also lead evidence in support without leaving gaps or creating mysterious links which have not been or cannot be explained. In short, the pleadings of devolution and the evidence in support must be reliable and cogent otherwise the claim for title will fail. See PADA VS. GALADIMA (2018) 3 NWLR (PT. 1607)436: EZEOKONKWO VS. OKEKE (2002) NWLR (PT. 777) Eze vs. Atasie (2000) 6 SC (Pt. 1) 214 (2000) 10 NWLR (Pt. 676) 470.
In the instant appeal, the Appellant who was Claimant at the lower Court pleaded and relied on traditional history to prove his title. There are unexplained gaps in the evidence led in proof of pleaded facts. He failed to lead reliable, credible and cogent evidence in support of his claim. Furthermore, the arguments canvassed before us have not in any way impugned the evaluation of evidence done by the trial Judge. I completely agree with my learned brother that there is no need to disturb the evaluation of evidence done by the learned trial Judge and the exercise of his discretion in favour of the Respondent.
It is for the above and the more comprehensive reasons contained in the lead judgment that I too dismiss this appeal. I abide by the consequential orders in the lead judgment.
ABBA BELLO MOHAMMED, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I totally agree with and adopt the reasoning and conclusions contained therein, to the effect that this appeal is devoid of merit.
l need to restate that, civil proceedings before our Courts are predicated upon and prosecuted on the basis of the pleadings and the evidence of the parties.
The pleadings set out clearly the factual parameters of the parties’ respective cases, and from those pleadings is discerned the cause of action in the suit and the issues in controversy between the parties: LAGURO & ANOR v. TOKU & ANOR (1992) LPELR-1747(SC). per Belgore, JSC (as he then was) page 8. paras. C-D: and AKANINWO & ORS v NSIRIM & ORS (2008) LPELR-321 (SC), per Aderemi, JSC at pages 34—35. paras. 34–35, paras. A–B. The evidence on the other hand provides the means by which the parties establish ‘the factual parameters they set out in their pleadings. For this reason, the law stipulates that pleadings and evidence must be in consonance with each other. Pleading which is not supported by evidence is legally deemed abandoned and must be discountenanced by the Court. Conversely, evidence is at variance with pleadings goes to no issue and must be disregarded by the Court. See: MBANEFO v MOLOKWU & ORS (2014) LPELR- 22257(SC), per Peter-Odili, JSC at 46. paras. A—D: ACHONU v. OKUWOBI (2017) LPELR-42102(SC), per Galinje, JSC at pages 28-19. paras. E-B: and SOGUNRO & ORS v YEKU & ORS (2017) LPELR-41905(SC). per Nweze, JSC at pages 23 -24, paras. E-D.
In the instant appeal, the Appellant who had hinged his claim for declaration of title to land on traditional history had failed to plead how the land devolved unto him in his Amended Writ of Summons and Statement of Claim at pages 58-70 of the Record of Appeal. Thus, even as he copiously tried to lead evidence of such devolution at trial, his evidence was of no value, since both the parties and the Court are bound by the parameters set in the parties’ pleadings. This is so both at the trial Court and at the appellate Courts: ORUNENGIMO & ANOR v. EGEBE & ORS (2007) LPELR-2779(SC), per Tabai, JSC at page 16, paras. C–C; and WEMA BANK PLC v. ARISON TRADING & ENGINEERING COMPANY LTD & ANOR (2015) LPELR-40030(CA), per Tsammani, JCA at page 39 paras. A-B. the failure of the Appellant to plead how the land for which he claimed title devolved to him had inter alia, defeated his claim before the trial Court and thus this appeal.
It is for this and the other reasons, all of which were succinctly stated in the lead judgment of my learned brother NIMPAR, JCA, that I also dismiss this appeal for lack of merit and affirm the judgment of the trial Court delivered on 18th December, 2013.
Appearances:
Edwin Anikwem with him Olawale Bayewunmi For Appellant(s)
Y. O. Oyetunde For Respondent(s)