ALHAJI AMBALI OSENI v. AFOLABI ADESANYA & ANOR
(2019)LCN/13623(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of July, 2019
CA/IB/96/2018
RATIO
EVIDENCE: THE EFFECT OF WHEN A WITNESS’ EVIDENCE SUPPORTS THE CASE OF THE OPPOSING PARTY
It is trite that when the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent can take advantage of such evidence to strengthen his case, if it is consistent with and corroborates his case.
See ONISAODU VS. ELEWUJU (2006) 13 NWLR (PT. 998) PG. 517 AT 532 PARA C AND N. B. N. LTD. VS. T. A. S. A. LTD. (1996) 8 NWLR (PT. 468) 511. PER FOLASADE AYODEJI OJO, J.C.A.
ESTOPPEL: HOW TO PLEAD ESTOPPEL
The law is that estoppel need not be pleaded in any special form so long as the matters constituting estoppel are stated in a manner to show that the party pleading it relied on it as a defence or answer. See ALAKIJA VS. ABDULAI (1998) 6 NWLR (PT. 552) 1 AT 15 PARA B, EZEWANI VS. ONWORDI (1986) 4 NWLR (PT. 33) 27 AT 43 PARA B ? F AND CHINWENDU VS. MBAMALI (1980) 3- 4 SC 31. PER FOLASADE AYODEJI OJO, J.C.A.
ESTOPPEL: WHEN IT ARISES
The Supreme Court in the case of OYEROGBA VS. OLAOPA (1998) 13 NWLR (PT. 583) PG. 509 AT 528 PARAS A C held thus:
It has been long settled that an issue of estoppel arises when an issue has been adjudicated on in an earlier suit by a Court of competent jurisdiction and the same issue comes incidentally in question in a subsequent Proceeding between the same parties or their privies .This based on the legal principle that a party is precluded from contending that contrary opposite of any specific point which having once been distinctly put in issue has solemnly and with certainty been determined against him. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact or law. PER FOLASADE AYODEJI OJO, J.C.A.
ISSUE ESTOPPEL: PRINCIPLE INVOLVED
It is thus clear that essentially issue estoppel operates on the settled point of law that once an issue has been raised and settled between parties neither party can be allowed to raise it all over again. See OLORUNTOBA OJU VS. ABDUL RAHEEM (2009) 13 NWLR (PT. 1157) 83 AT 132; BAMGBEGBIN VS. ORIARE (2009) 13 NWLR (PT. 1158) 370 AT 402 403 PARAS H A and OLUFEAGBA VS. ABDUR RAHEEM (2009) 18 NWLR (PT. 1173) 384 AT 442 PARAS D E. PER FOLASADE AYODEJI OJO, J.C.A.
APPEAL: WHEN THE APPELLATE COURT WILL NOT INTERFERE IN THE DISCRETION OF THE TRIAL COURTS
It is trite that an Appellate Court will not interfere with the findings of a trial Court where same is borne out by the facts before it. See OKIEMUTE VS. STATE (2016) 15 NWLR (PT. 1535) 297 AT 335-336. PER FOLASADE AYODEJI OJO, J.C.A.
LAND LAW: 5 WAYS BY WHICH TITLE OR OWNERSHIP OF LAND CAN BE PROVED
The Supreme Court in the well cited case of IDUNDUN VS. OKUMAGBA (1976) 9 10 SC (Reprint) 140; (1976) 9 10 SC 227 held that there are five ways in which title or ownership of land may be proved.
They are:
?1) By traditional evidence.
2) By production of documents of title authenticated and executed.
3) By acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference of true ownership.
4) By acts of possession and enjoyment.
5) Proof of possession of connected or adjacent land
A Plaintiff need not prove all five ways to succeed in an action of title to land. He can succeed if he proves even one of the ways. PER FOLASADE AYODEJI OJO, J.C.A.
LAND LAW: A COMPOSITE PLAN DOES NOT CONFER TITLE TO LAND
It is settled law that a composite plan does not confer title to land. The purpose of filing a composite plan is to ascertain the identity and delimit the boundaries of the land in dispute. See JIWUL VS. DIMLONG (2003) 9 NWLR (PT. 824) 154; IGWE VS. KALU (2002) 4 SCM 62 AND POLYCARP UBOCHI NNADI VS. DAMIAN O.C. OKORO (1998) 1 NWLR (PT. 535) 573 AT 605. Exhibit F which is a composite plan and no more cannot be evidence of title to the disputed land. Exhibit G, the judgment in SUIT NO: HCJ/8/2009 did not also vest title in the disputed land in the Respondents. To my mind, all the Respondents proved vide Exhibit G and F is that part of therelief sought in Paragraph 47 of the Further Amended Statement of Defence and Counterclaim to wit:
That the portion of the land edged Red is situate at Ifodo and not Ilefon and that the land in dispute is on Ifodo Land.” PER FOLASADE AYODEJI OJO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
ALHAJI AMBALI OSENI
(BAALE OF ILEFON)
(for himself and on behalf of Ilefon Community) Appellant(s)
AND
1. AFOLABI ADESANYA
2. CHIEF SUNDAY ADESANYA
(Baale of Ifodo Community) Respondent(s)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court holden at Ijebu Ode delivered in SUIT NO: HCJ/39/15 on the 2nd of November, 2017. The trial Court dismissed the Claimant/Appellant?s claim and granted the Defendant/Respondents counterclaim in part.
By a Further and Better Amended Statement of Claim filed on 9th February, 2017 contained at pages 290 ? 291 of the record, the Appellant as Claimant at the lower Court sought the following reliefs:
?21. Whereof the Claimant claims:
a. A declaration that the Claimant is entitled to a Statutory Right of Occupancy in respect of the piece or parcel of land situate lying and being on ILEFON Community land of Ilefon-Ilese Road, Itunragbabi quarters, Ilefon particularly demarcated by Survey Pillars Nos. SC/OGBJ2016E, SC/OGBJ2017E, SC/OGBJ2018E, SC/OGBJ2019E, SC/OGAL3525LH and SC/OGY412F on Survey Plan No: OG/0265/2014/011 dated 6/2/2014 drawn by M. A. Hassan, a Surveyor.
b. N200,000.00 (Two Hundred Thousand Naira) general damages for trespass committed by the 1st Defendant when sometime in
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January 2015 he accompanied an illegal tenant to the land in dispute and attempted to farm on the land.
c. Perpetual injunction restraining the 1st Defendant, his agents and privies from further committing further acts of trespass in the land in dispute.?
The Respondents/Defendants in their Further Amended Statement of Defence urged the Court to dismiss the Claimant?s claims and also counterclaimed as follows:
?The first and second Defendants will recall all the paragraphs of the pleadings in this defence from. . . . . and urge the Court to hold that the portion of land edge Red belong to IFODO COMMUNITY and that it is situate at IFODO and not ILEFON and that the land in dispute is on Ifodo land.
48. Whereof first and second defendants will urge the Court to grant a Certificate of Occupancy of the land in dispute edged GREEN within the area edge RED in the composite Plan of Defendants Number OG/2069/201/069 dated 07/01/2016 prepared and signed by MURITALA AKOREDE (Surveyor) attached to this defence in favour of Ifodo community.?
?
A brief summary of the facts of this case as contained in the judgment of the lower
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Court at page 383 of the record are as follows:
?The land in dispute in this case as pleaded in paragraph 7 of the Claimant?s further amended statement of claim, is the parcel of land described and delineated on Survey Plan No. OG/0265/2014/01 dated 6/2/2014 prepared by Surveyor M.A. Hassan. The Claimant (Baale of Ilefon) who instituted the action for himself and on behalf of Ilefon Community is laying claim to the land on the ground that it is part of Ilefon community land founded and first settled upon by one Iwalefon about 300 years ago. He alleged that Ilefon consists of two quarters namely ItunJagun and Itun-Ragbabi and that the land in dispute is at Itun-Ragbabi quarters. He alleged that the 1st Defendant sometime in January 2015 trespassed on the land by letting it to a tenant and later accompanied the tenant to the land.
The defendants deny that the land in dispute is part of Ilefon or part of any of its constituents; rather they claim it is part of Ifodo Community land founded and first settled upon by their ancestor, Ogidan. They also denied that the 1st Defendant trespassed on the land.?
?The full judgment of the
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lower Court is at pages 382 ? 395 of the record. After a consideration of the case presented by the parties, the Court at page 395 concluded as follows:
?In sum, the Claimant?s claim fails in its entirety and it is dismissed; the defendants? counter-claim succeeds in part and it is ordered as follows:
a. The portion of land edged in Red in Exhibit F (plan No. OG/2069/201/069 dated 07/01/2016 and prepared by Muritala Akorede (Surveyor) belongs to IFODO Community. The land which enclosed the land in dispute in this case is at IFODO and NOT ILEFON.?
Dissatisfied with the whole decision of the lower Court, the Appellant filed a Notice of Appeal on the 31st of January, 2018. See pages 396 ? 399 of the record. The Notice of Appeal contains three Grounds. The Grounds of Appeal without their particulars are as follows:
?1. The trial Court erred in law when it held at page 4 of the Judgment that ?on the other hand, the Defendants tendered Exhibit F which in its notes shows (a) property of Pa Ogidan Adesanya family of Ifodo verged Red; (b) Part of Ogidan Adesanya family land of Ifodo family subject
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matter of Suit No. HCJ/08/2009 verged Blue: (C) Ilefon land (Itunragbabi Community) verged Yellow; and (d) the land in dispute as described on Claimant?s plan ? Exhibit A, verged Green. Exhibit F was not only in line with the Defendants? pleadings, it shows unequivocally (a) that Ilefon (Itunragbabi quarters) shares boundary with Ifodo and (b) that the land in dispute falls within the area verged Red being claimed by the Defendants as Ifodo land. The evidence was not challenged or discredited; the Defendants? surveyor was also not shaken under cross examination. I therefore find Exhibit F and its evidence credible; I accept it.”
2. The trial Court erred in law in relying on findings in Exhibit G the judgement in an earlier case when it was not pleaded as an estoppel and there is no evidence according to S. 174(2) Evidence Act that the party who tendered the exhibit had no opportunity of pleading it as estoppel.
3. The trial Court having held in paragraph 2 page 12 of the judgment that inter alia that ?I am not unmindful of the pleadings and evidence that two of Ogidan children married two female children of
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Egunpopo, I do not consider that, without more, sufficient to confer co-ownership of Ifodo land on Egunpopo family and coupled with the evidence of DW3 that Egunpopo ?asked Ogidan to go and settle at Ifodo? and that of DW4 that ?Egunpopo gave him land to settle on? make the veracity of the Defendants? claim of title to Ifodo land greatly doubtful and incredible. I so hold (emphasis supplied) erred in law to now make a u-turn at the last paragraph of the last page of the Judgment to hold that ?The portion of land edged Red in Exhibit F (Plan No. OG/2069/201/069 dated 07/01/2016 and prepared by Muritala Akorede (Surveyor) belongs to IFODO Community.?
The relief sought is as follows:
?The Court should set aside the judgment of the Court to the effect that the land belongs to IFODO Community.?
Parties filed and exchanged Briefs of Argument. The Appellant?s Brief of Argument settled by Alhaji Balogun Adesegun Adebayo was filed on the 31st of May, 2018 while the Respondents Brief settled by M. O. Folorunsho Esq. was filed on the 13th of June, 2018.
?Learned Counsel to the Appellant in
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the Appellant?s Brief of Argument formulated the following issues for determination:
1. Whether the trial Court was right when it held at page 385 of the Record of proceedings that ?on the other hand, the Defendants tendered Exhibit F which in its notes shows (a) property of Pa Ogidan Adesanya family of Ifodo verged Red; (b) Part of Ogidan Adesanya family land of Ifodo Community (subject matter of Suit No. HCJ/08/2009) verged Blue; (c) Ilefon land (Itunragbabi Community) verged Yellow; and (d) the land in dispute as described on Claimant?s plan- Exhibit A, verged Green. Exhibit F
