ALHAJI TAOFIK ADEBANJO & ANOR v. MR. HARUNA ADESANYA & ORS
(2018)LCN/12089(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of October, 2018
CA/L/484/2016
RATIO
ARBITRATION: BINDINGNESS OF AN ARBITRATION
“After a review and restatement of the law on the validity, application and bindingness of customary arbitration in Nigeria, as enunciated in judicial authorities of the apex Court, such as the cases of Ojibah v. Ojibah (1991) 6 SCNJ, 156 @ 169; Ufomba v. Ahuchaogu (2003) 8 NWLR (821) 130 and Agala v. Okusin (2010) 10 NWLR (1202) 412, the High Court, relying on Awosile v. Sotunbo (1992) NWLR (245) 514 and other cases, held that: –
In Exhibit D3, the Onibeju in Council heard the case put forward by both sides not only the defendants as DW2 said under cross-examination. I hold that the decision of the Onibeju in Council Exhibit D3 which fulfilled all the conditions for its validity is binding on the claimants and the defendants.” PER MOHAMMED LAWAL GARBA, J.C.A.
CONSTITUTION: RIGHT TO FAIR HEARING
“The right of fair hearing arises and lies in the procedure used or employed in the determination of the civil rights and obligations of parties to a dispute submitted to Court of law or other Tribunal established by law, to settle or resolve. Victino Fixed Oods Ltd v. Ojo (2010) 8 NWLR 1197); Mil. Gov. Lagos State v. Adeyiga (2012) 5 NWLR (1293) 2911; FBN, Plc. v. TSA Ind. (2010) 15 NWLR (1216) 247. As pointed out by the Supreme Court in Kotoye v. CBN (Supra): The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing.
See also Gyang v. C. O. P Lagos State (2014) 3 NWLR (1395) 552; Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (319) 143 @ 159; Mgbenwelu v. Olumba (2017) 1 NWLR (1558) 177 (cited in the Respondents brief).” PER MOHAMMED LAWAL GARBA, J.C.A.
LAND LAW: WAYS TO PROVE OWNERSHIP OF LAND
“The law still remains that one of the ways of proving title to a piece of land in Nigeria, is by way of traditional history evidence and that the burden of proof in respect of claims for ownership or title to land is borne by the plaintiff or claimant, to succeed on the strength of his own case and not on the weakness of the defence. Atanda v. Ajani (1989) 3 NWLR (111) 511, Okafor v. Idigo (1984) 1 SCNJ, 481, Ezeakabekwe v. Emenike (1998) 62 LRCN 4855, Anabaronye v. Nwakaihe (1997) 1 NWLR (482) 374, Clay Industries Limited v. Aina (1997) 8 NWLR (516) 208, Orlu v. Gogo-Abite (2010) 8 NWLR (1196) 307. The law is now trite, also, that for a party to succeed in a claim for ownership or title to land based on traditional history, the claimant must plead and proof by credible evidence of the history he relies on, who the original owner/founder of the land was, how the land was founded and the genealogical steps/stages from the original owner/founder in generations, down to him, in unbroken succession. Akunyili v. Ejidike (1996) 5 NWLR (449) 381, Alli v. Alesinloye (2000) 6 NWLR (660) 177, Omin v. Etim (2003) 6 NWLR (817) 587, Anukam v. Anukam (2008) 5 NWLR (1081) 455, Okoko v. Dakolo (2006) 14 NWLR (1000) 401, Dakolo v. Rewane-Dakolo (2011) LPELR-915 (SC).” PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI TAOFIK ADEBANJO
2. MR. FRIDAOSI OGUNYEMI ADEBANJO – Appellant(s)
AND
1. MR. HARUNA ADESANYA
2. MR. ADEBISI ADESANYA
3. MR. SIKIRU ADESANYA
4. MR. NOSIRU ADESANYA
5. MR. SHAMUSI ADESANYA
6. MISS. BAYURAT ADESANYA – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment):
As Claimants, the Appellants, had sought declaratory orders and injunction against the Respondents in the Suit No. LD/1193/2012 before the High Court of Lagos State in respect of a piece of land situate at Eleran-Igbe Oke-Egun, Ibeju area of Lagos State. The Primary claim was that the Appellants are entitled to equal share of the land being joint owners as children/descendants of the original owner one Chief Suberu Abogunloko. The Respondents denied the claims and counter-claimed the land exclusively as belonging to their mother; Raliatu Ogunkoya who was Chief S. Abogunloko’s wife.
At the trial, each of the parties called two (2) witnesses and tendered documents in support of their cases and in a judgement delivered on the 22nd January, 2016, the High Court dismissed the Appellants claims for lack of proof and found for the Respondents in the counter-claim.
Aggrieved by the judgement, the Appellants filed two (2) Notices Appeal on 12th April, 2016 containing three (3) grounds and on 28th April, 2016, containing seven (7) grounds of appeal.
The Notice of Appeal filed on the 12th April, 2016 was amended by the Amended Notice of Appeal dated and filed on the 25th September, 2017, which was deemed on the 19th September 2018, at the oral hearing of the appeal.
In the Amended Appellants brief filed on the 25th July, 2017, also deemed on 19th September 2018, the following issues are said to arise for decision by the Court in the appeal: –
1. Whether or not the members of Adebanjo’s family were accorded fair hearing in the Onibejus Council proceedings which the trial judge ipso facto relied upon solely to give judgment; is binding on the Appellants? (Distilled from grounds 1 and 2 of the Notice of Appeal)
2. Whether the defendants evidence on the sole ownership of the land in dispute was not rebutted by the evidence of the claimants when the Claimants denied that the land in dispute was not given to Raliatu Ogunkoya. (Distilled from Ground 3 of the Notice of Appeal)
3. Was the Court right in awarding larger portion of the piece of land in dispute to the Defendants after holding that both the Claimants and Defendants are joint owners and also have the same root of title? (Distilled from Ground 4 and 5 of the Notice of Appeal)
4. Whether or not the Appellants undisturbed possession and use of the said in dispute over time; right from the time PA. SUBERU ABOGUNLOKO was alive and married to Madam Raliatu Ogunkoya till time the Appellants complained to the Onibeju’s Council, the Respondents are guilty of the equitable doctrine of Laches, Acquiescence and standing by? (Distilled from Grounds 6, 7 and 8 of the Notice of Appeal)
The issues were adopted in the Respondents Amended brief filed on 21st August, 2017, deemed on 19th September, 2018. The Appellants also filed a reply brief on 20th October, 2017 to complete the settlement of the briefs by the parties.
Although there was record that the Counsel for the Respondents was duly served with Hearing Notice of the appeal, he was absent from the Court on the date of hearing and did not send any communication to the Court for the absence. The appeal was, pursuant to the provisions of Order 19, Rule 9 (4) of the Court of Appeal Rules, 2016, treated as having been duly argued on the Amended Respondents brief.
Since they are derivable from the grounds of the appeal, I intend to consider the issues as formulated by Counsel in the determination of the appeal.
Issue 1: Whether or not the members of Adebanjo’s family were accorded fair hearing in the Onibejus Council proceedings which the trial judge ipso facto relied upon solely to give judgment; is binding on the Appellants? (Distilled from grounds 1 and 2 of the Notice of Appeal)
Appellants Submissions:
The pith of the submissions by learned Counsel for the Appellants is that the Appellants were not afforded a fair hearing at the proceedings before the Onibeju Council (Exhibit D3 at the trial) thereby rendering the Resolution of the Council, null and void. Section 36 of the 1999 of the Federal Republic of Nigeria and several judicial authorities on the meaning and consequence of the breach of the right to fair hearing, were cited in support of the submission and the High Court was said to be wrong in law to have relied on it to enter judgement for the Respondents counter-claim. The judicial authorities cited include Kotoye v. CBN (1989) 1 NWLR (1998) 419; LPDC v. Fawehinmi (1985) 2 NWLR (7) 300 @ 347-8 and A. G. Lagos State v. Eko Hotels Ltd (2006) 18 NWLR (1011) 378 @ 441-2. It is the contention of Counsel that since the Appellants did not accept the Resolution of the Onibeju Council by filing the action before the High Court, it was wrong to have held that they were bound by it. Okereke v. Nwankwo (2003) LEPLR-SC 11/1999 and Agu v. Ikewibe (1991) 3 NWLR (180) 385 @ 407 were referred to on the conditions for a valid and binding customary arbitration and the Court is urged to declare the Resolution of the Onibeju Council void for breach of the Appellants right to fair hearing and set aside the finding by the High Court based thereon.
Respondents Submissions:
It is submitted that the Respondents did submit and participate fully in the proceedings before the Onibeju Council and the parties who agreed to be bound by the decision reached thereat, were afforded a fair hearing. Learned Counsel said the Appellants benefited from the decision of the Council and cannot, on the authority of Ogwucha v. B. S. C. S. C. (2014) 7 NWLR (1406) 379, be heard to now complain of denial of fair hearing.
The High Court is said to have properly evaluated the validity and bindingness of the Exhibit D3 and that the Appellants have failed to show that their right to fair hearing was breached or denied. The cases of Re: Jaja (1995) 2 NWLR (375) 65 @ 78 and Mgbenwelu v. Olumba (2017) NWLR (1558) 177 on the application of the principle of fair hearing were cited and the Court is urged to dismiss the issue and uphold the decision by the High Court on Exhibit D3.
The Appellants Reply brief merely further argued the Appellants issue and did not answer or deal with new points arising from the Respondents brief on the issue as stipulated under Order 19, Rule 5(1) of the Court of Appeal Rules, 2016.
Resolution
Let me mention, as a foundation, that the Resolution of the Onibeju Council; Exhibit D3, is not on appeal before this Court, but rather, whether the High Court was right to have held that it was binding as a customary arbitration, on the Respondents who were parties in the proceedings before the Council. After a review and restatement of the law on the validity, application and bindingness of customary arbitration in Nigeria, as enunciated in judicial authorities of the apex Court, such as the cases of Ojibah v. Ojibah (1991) 6 SCNJ, 156 @ 169; Ufomba v. Ahuchaogu (2003) 8 NWLR (821) 130 and Agala v. Okusin (2010) 10 NWLR (1202) 412, the High Court, relying on Awosile v. Sotunbo (1992) NWLR (245) 514 and other cases, held that: –
In Exhibit D3, the Onibeju in Council heard the case put forward by both sides not only the defendants as DW2 said under cross-examination.
I hold that the decision of the Onibeju in Council Exhibit D3 which fulfilled all the conditions for its validity is binding on the claimants and the defendants.
Exhibit D3, the Resolution of the Onibeju in council, is copied at pages 73-81 of the Record of Appeal and it shows that on the 3rd September 2011, the two (2) families of the Respondents as complainants, and of the Appellants; as Respondents to the complaint, appeared before the Council, headed by the Onibeju of Ibeju Land, in respect of the dispute over the land in question. The Respondents made their submissions through their spokesman; Haruna Taiwo Adesanya (1st Respondent) on that day and he was asked questions by the Council, as shown at pages 74-79 of the Record of Appeal.
Then on 8th September 2011, the Appellants family through Waliu Adebanjo as their spokesman, presented their case before the Council, in the course of which Alhaji Taofiki Adebanjo, one of the principal Elders of the Appellants family, stood up and pleaded with the Onibeju to give the families long adjournment to enable them meet for amicable settlement of the dispute. This is reflected at pages 79-81 of the Record of Appeal.
This state of Exhibit D3 on the account of what transpired before the Onibeju in Council in the proceedings to settle the dispute between the parties has not been challenged or disputed before the High Court or in this appeal. The law is that the Record of Appeal, duly certified by the Registrar of the lower Court and transmitted to the Court of Appeal, binds both the Court and the parties in the hearing and determination of the appeal. Onwuka v. Ononuju (2009) 11 NWLR (1137) 174; Magaji v. Nigerian Army (2008) 34 NSCQR (Pt. 1) 108; Omaghoni v. Nig. Airways (2006) 18 NWLR (1011) 310 @ 329. Apparently, the Exhibit D3 shows not only that the Appellants were afforded the opportunity of a hearing in the proceedings before the Onibeju Council, but were in fact and deed, heard in presenting their own side of the dispute to the Council in the course of which they pleaded for adjournment to enable the parties negotiate amicable settlement. It is therefore spurious for learned Counsel for the Appellants to allege breach of their right to fair hearing in the proceedings before the Onibeju Counsel. As stated and restated in the judicial authorities cited by Counsel on the issue, the principle of fair hearing envisaged and provided for in Section 36(1) of the 1999 Constitution simply means, requires and guarantees that in the determination of his civil rights and obligations by a Court of law or other Tribunal of law, a person shall be afforded reasonably adequate opportunity to present his case without let or in hindrance.
The right of fair hearing arises and lies in the procedure used or employed in the determination of the civil rights and obligations of parties to a dispute submitted to Court of law or other Tribunal established by law, to settle or resolve. Victino Fixed Oods Ltd v. Ojo (2010) 8 NWLR 1197); Mil. Gov. Lagos State v. Adeyiga (2012) 5 NWLR (1293) 2911; FBN, Plc. v. TSA Ind. (2010) 15 NWLR (1216) 247. As pointed out by the Supreme Court in Kotoye v. CBN (Supra):
The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing.
See also Gyang v. C. O. P Lagos State (2014) 3 NWLR (1395) 552; Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (319) 143 @ 159; Mgbenwelu v. Olumba (2017) 1 NWLR (1558) 177 (cited in the Respondents brief).
It is apt here to recall the exhortation of Tobi, JSC in the case of Adebayo v. A. G. Ogun State (2008) 7 NWLR (1085) 201 @ 221-2, on the penchant of Counsel to resort to the breach of the principle of fair hearing even in cases in which it clearly does not apply, as a legal strategy. In his usual proficient erudition, his Lordship has stated that:-
Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.
That is what the learned Counsel for the Appellants appears to have done in respect of Exhibit D3 and the challenge now raised before this Court on ground of denial or breach of fair hearing in the proceedings contained therein. But the above apart, the provisions of Section 36(1) are in simple and straight forward language and the words used or employed by legislature in drafting and couching the provisions are plain, clear and unambiguous. They are in such circumstance, to be ascribed their ordinary, natural and plain meaning without the need for interpretation, in line with firmly established judicial principles of law. Ekwunife v. Ngene (2000) 2 NWLR (646) 650; Uwazurike v. A. G. Federation (2007) 8 NWLR (1035) 1, (2007) 2 SC, 169; Idika v. Uzoukwu (2008) 9 NWLR (1091) 34; Action Congress v. Jang (2009) 4 NWLR (1132) 475. The provisions of Section 36(1) of the Constitution which provide for and guarantee the right to fair hearing are in the following terms: –
36(1). In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Plainly, the right to a fair hearing guaranteed in these provisions is in the determination of a persons civil right and obligations by a Court or other Tribunal established by law. Although, the Constitution did not define what a Court or other Tribunal established by law are for the purpose of the right guaranteed in the provisions or other provisions of the Constitution, a Court used in the provisions can only mean a Court established by the Constitution itself or other Courts established by laws of either the National or State Assemblies, pursuant to the powers vested in or conferred on them by the relevant provisions of the Constitution. On its part, other tribunal established by law means what it says expressly, i.e., a Tribunal established by law enacted either by the National or State Assemblies in exercise of the power and authority to do so conferred on them by the relevant provisions of the Constitution. In the application of the Constitution or provisions of any statute for that matter which are clear, plain and unambiguous and so do not require interpretation, a Court does not have the vires to read-in or read-out, add to or substract from the provision, what is not there or what is clearly there.
Osondu v. FRN (2000) 12 NWLR (682) 482; NBN Ltd. v. Weide & Co. Ltd (1996) 8 NWLR (465) 150; M. V. Caroline Maersk v. Nokoy Invest. Ltd (2002) 12 NWLR (782) 472; Musa v. INEC (2002) 11 NWLR (778) 223; Ojukwu v. Obasanjo (2004) 12 NWLR (886) 169; Ugwu v. Ararume (2007) 12 NWLR (1048) 367.
In the above context, the Onibeju Council, is not a Court or other Tribunal established by the law before which the right to a fair hearing is guaranteed and provided for by Section 36(1) of the Constitution and which must strictly abide by the provisions. I am not unmindful of the principles of practice evolved over the years by the Courts that generally, bodies that perform the functions of determination of rights and obligations of every citizen are required to in their procedure, afford the parties opportunity of presenting their sides of the issues/disputes freely, before taking decisions in line with one of the twin pillars of natural justice to which all human beings are entitled. However, these principles cannot be elevated to the position of specific provisions of the Constitution, and strictly applied to situations and circumstances to which they do not apply. The provisions of Section 36(1) of the Constitution cannot properly be used to invalidate or nullify the proceedings of a customary arbitration on ground of lack of a fair hearing in the procedure adopted in settling disputes voluntarily and freely submitted by the parties. Since the arbitral body is neither a Court nor other Tribunal established by the law.
In Ufomba v. Ahuchaogu (2003) 4 SC (Pt. II) 65, it was held that:-
A customary arbitration does not qualify as a Court of law within the Constitution. It is not even an inferior Court outside the Constitution.. Native or customary arbitration is only a convenient forum for settlement of native dispute and cannot be raised to the status of a Court of law.
Blacks Law Dictionary, 8th Edition at Page 7544 defines the word Tribunal as
1. A Court or other adjudicatory body.
2. The seat, bench, or place where a judge sits.
This definition shows clearly that a Court or other Tribunal established by law provided for the application of Section 36(1) are two sides of the same coin.
Over the years, the Courts have developed the principles that once parties voluntarily submit to what is known as customary arbitration and agree, either expressly or by necessary implication to abide by the outcome, they would not be permitted to resile from the outcome even if it is not favourable and would be estopped from further challenging or contesting the issues resolved by the arbitrators. These principles have crystallized into the law that sets out conditions for the validity and bindingness of customary arbitration, in our judicial administration. The recognized and established conditions are:-
(1) that there has been voluntary submission of the dispute to the arbitrator(s);
(2). that the parties agree to accept and to be bound by the decision of the arbitrator(s);
(3) the arbitration was done or conducted in accordance with the custom of the parties;
(4) that the arbitrator(s) reached a decision and published or made it known to the parties openly; and
(5) that the decision was accepted at the time it was made.
See Agu v. Ikewibe (supra); Ohiaeri v. Akabeze (1992) 2 NWLR (221) 467; Igwego v. Ezeugo (1992) 6 NWLR (249) 561; Anyabunsi v. Ugwuze (1995) 6 NWLR (401) 255; Odonigi v. Oyeleke (2001) 2 SC, 194; Okereke v, Nwankwo (2003) 4 SC (Pt. 1) 16; Awosile v. Sotunbo (1992) 6 SCNJ, 204; Agala v. Egwere (2010) ALL FWLR (532) 1609; Ojibah v. Ojibah (supra).
The High Court in its judgement has considered the Exhibit D3 in its essential details, at pages 336-338 of the Record of Appeal and held that it has fulfilled all the conditions for its validity and it is binding on the Appellants.
The ground of the challenge to Exhibit D3 by the Appellants Counsel is that the Appellants did not accept the decision by the Onibeju Council and that is why they instituted their action against the Respondents. However, the decision of the Onibeju Council on the dispute between the families of the parties in respect of the same land in question was made by the Regent M. O. Adebanjo Council even before the present Onibeju ascended the throne. It was because the Appellants family did not abide by that decision to give two (2) acres of the land at Ibeju to the Respondents family who were ready to give ten (10) acres of the land at Okegun to the Appellants family as decided by the Regent Adebanjo Council, that led to the later complaint before the current Onibeju Council.
By the voluntary submission of the parties to the customary arbitration of the Regent Adebanjo Council over their dispute in respect of the land in question, there was implication that they agreed to abide by the outcome of the arbitration and in the absence of record of rejection or non acceptance of the decision by the Regents Council at the time it was made, the Appellants family was deemed to have accepted it. The fact that the Appellants family refused to abide by the decision later did not amount to or constitute outright rejection at the time the decision was made by the Regents Council. Anyabunsi v. Ugwunze (1995) 6 NWLR (401) 255; Onwu v. Nka (1996) 7 NWLR (458) 1; Uzoewulu v. Ezeaka (2000) 14 NWLR (688) 629.
In these premises, the High Court was right that Exhibit D3 has satisfied all the requirements for validity and bindingness on the Appellants, as a customary arbitration, pleaded and proved sufficiently by the Respondents. The decision of the Onibeju Council was only a recognition and adoption of the decision by the Regents Council and not a new decision arising from distinct arbitration of the dispute between the parties.
In the result, I find no merit in the arguments of the Appellants under Issue 1 that they were denied the right to fair hearing in the proceedings of the Onibeju Council; Exhibit D3. The issue is resolved against the Appellants.
Issues 2: Whether the defendants evidence on the sole ownership of the land in dispute was not rebutted by the evidence of the claimants when the Claimants denied that the land in dispute was not given to Raliatu Ogunkoya. (Distilled from Ground 3 of the Notice of Appeal)
Appellants Submissions: –
It is submitted that the High Court was wrong to have found that the Appellants did not plead how the land in dispute was founded by Suberu Abogunloko, when they have done so in their Reply to the Statement of Defence and Counter Claim by the Respondents which forms part of their pleadings.
Akeredolu v. Akinremi (1989) 3 NWLR (108) 164 @ 172 and Bakare v. Ibrahim (1973) 6 SC, 205 were cited on the purpose and use of a Reply to statement of defence by a claimant in civil proceedings, and it is argued that the Appellants have pleaded their root of title and answered all questions on it. The case of Gaji v. Paye (2003) 8 NWLR (823) 583), among other cases, was referred to on the probative value of evidence elicited under cross-examination on a fact pleaded and in issue.
It is then said that the Respondents pleaded a different root of title through Madam Raliatu Ogunkoya Odofin, who they later, said handed over the land in dispute to Suberu Abogunloko and so there was conflict in traditional histories as to the root of title. The law, said Counsel, is that when a Court is faced with two contrasting traditional histories which are credible on root of title to land, it would recourse to recent acts of possession within memory to ascertain which of them is more probable, citing Ohiaeri v. Akabeze (supra) and Elegushi v. Oseni (2005) 14 NWLR (945) 348, as well as Kojo III v. Bonsie (1957) 1 WLR, 1223, as authorities for the position.
According to Counsel, their unchallenged evidence that the parties have been in equal possession of the land in dispute was discountenanced by the High Court which evidence shows that they are joint heirs and settles the issue as to the root of title of Suberu Abogunloko. He said, relying on Mogaji v. Odofin (1978) 4 SC, 91, that it is the duty of a Court to consider adequately and properly decide, all issues placed before it by the parties and make pronouncements on them. The High Court was said to have failed to recognize the Appellants evidence of root of title admitted by both parties and the Court is urged to resolve the issue in Appellants favour as the evidence before the High Court was not properly evaluated.
Respondents Submission:
Learned Counsel says the Appellants pleaded that 3 persons founded the land, but failed to establish how the land was founded before it was allocated to Suberu Abogunloko. He said the Respondents pleaded and established their own root of title through the founder, Pa Odofin and traced how the land got to the Respondents as required in the case Udechukwu v. Ezemuo (2009) 14 NWLR (1162) 525.
Also, that the Appellants evidence on their root of title was not on any fact pleaded by them and so goes to no issue, on the authority of Raphael v. Ezi (2015) 12 NWLR (1472) 44. The High Court is said to have considered all the issues and evidence placed before it by placing it on the imaginary scale to find which was more cogent, credible and believable before entering judgement for the Respondents. The Court is urged to dismiss the issue and entire appeal.
The Appellants Reply brief did not answer or deal with any new points arising from the Respondents brief on the issue.
Resolution:
The law still remains that one of the ways of proving title to a piece of land in Nigeria, is by way of traditional history evidence and that the burden of proof in respect of claims for ownership or title to land is borne by the plaintiff or claimant, to succeed on the strength of his own case and not on the weakness of the defence. Atanda v. Ajani (1989) 3 NWLR (111) 511, Okafor v. Idigo (1984) 1 SCNJ, 481, Ezeakabekwe v. Emenike (1998) 62 LRCN 4855, Anabaronye v. Nwakaihe (1997) 1 NWLR (482) 374, Clay Industries Limited v. Aina (1997) 8 NWLR (516) 208, Orlu v. Gogo-Abite (2010) 8 NWLR (1196) 307.
The law is now trite, also, that for a party to succeed in a claim for ownership or title to land based on traditional history, the claimant must plead and proof by credible evidence of the history he relies on, who the original owner/founder of the land was, how the land was founded and the genealogical steps/stages from the original owner/founder in generations, down to him, in unbroken succession. Akunyili v. Ejidike (1996) 5 NWLR (449) 381, Alli v. Alesinloye (2000) 6 NWLR (660) 177, Omin v. Etim (2003) 6 NWLR (817) 587, Anukam v. Anukam (2008) 5 NWLR (1081) 455, Okoko v. Dakolo (2006) 14 NWLR (1000) 401, Dakolo v. Rewane-Dakolo (2011) LPELR-915 (SC).
The relevant pleadings of the Appellants on their root of title are paragraphs 25 and 26 of the Statement of Claim dated the 31st July, 2012 and the paragraphs 4 and 10 of the Reply to Statement of Defence and Defence to the Counter Claim dated 31st October 2012.
The avernments are as follows: –
25. The property the subject matter of this Suit is situate, lying and being at Eleran Igbe, Oke Egun, Ibeju, Lagos State is about 58 Acres or thereabout and is herein referred to as the land.
26. The land at the demise of Late Chief Suberu Abogunloko herein referred to as The Original Owner was inherited by all his Children according to Yoruba Native Law and Custom.
4. The Claimants state further in respect of the preceding paragraph that the first settler at the area where the subject matter of this suit is situate is the Family of Baba Olomodia followed by the Apena Family and Chief Suberu Abogunloko.
10. In response to paragraph 23 of 1st – 6th Defendants Statement of Defence the Claimants emphatically and honestly maintain that the original owner of the subject matter of this Suit was Pa Suberu Abogunloko and the parties in this Suit became entitle to the subject matter of this Suit through Pa Suberu Abogunloko.
The community purport of the facts deposed to in the above pleadings is that the land in dispute was originally owned by Pa Suberu Abogunloko and that the first settler at the area where the subject matter of this suit is situate is the Family of Baba Olomodia followed by the Apena Family and Chief Suberu Abogunloko.
They also say that at the demise of Chief Suberu Abogunloko, the land was inherited by all his children.
In paragraphs 15 and 16 of their respective Statements on Oath, both dated the 2nd of August, 2012, the Appellants repeated the above avernments as the evidence in support and proof of their root of title to the land in question.
Apparently, the pleadings and evidence of the Appellants on their root of title to the land in dispute does not meet the requirement of the law that they should plead and prove by credible evidence, how the land was founded and how it devolved, from their founder, through generations appurtenant to him, by way of a genealogical tree or hierarchy down to them. The mere avernment that Chief Suberu Abogunloko was the original owner does not explain how he became the original owner, for instance either by first settlement, conquest or grant. original owner does not clearly show how the land was founded by the Chief Abogunloko.
The avernment that the first settler in the area where the subject matter of the suit is situate is the family of Olomodia, followed by the Apena Family and Chief Suberu Abogunloko is not a positive and assertive fact that Chief Abogunloko founded the land in dispute by being the first settler thereat. Rather the avernment suggests that Chief Abogunloko, settled in the area after the two (2) other families that settled there before him since he followed them.
In addition, there are no pleadings from the Appellants as to how the land devolved from the said Chief Abogunloko, through generations and in an unbroken genealogical chain, to them as his descendants entitled to the land. It is not enough to simply say that at the demise of Chief Abogunloko, the land was inherited by all his children.
Having failed to adequately and properly plead and sufficiently prove the root of title by the traditional history relied on by the Appellants, the High Court cannot seriously be accused of failure to consider the pleadings in and evidence on the Appellants Reply to the Statement of Defence and defence to the counter claim.
The High Court is right to hold that the Appellants indeed, did not prove the root of title to the land in dispute and so their claim is bound to fail since the law is that having relied solely on the root of title for the claim, and they failed to prove it, they cannot fall back to call in acts of possession.
Where a claimant for title to land who pleads traditional history fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession of the same land to prove title to it since as a matter of course, there would be nothing on which to found or predicate such alleged acts of ownership. See Oyadare v. Keji (2005) 7 NWLR (925) 511 Odofin v. Ayoola (1984) 11 SC, 72, Yusuf v. Adegoke (2007) 11 NWLR (1045) 332. Having failed to proof the root of title by the traditional history pleaded and relied on for their claims, the law does not allow the Appellants to fall back or have resort to alleged acts of ownership and possession of the land in question as proof of such title. The issue is resolved against the Appellants.
Issue 3: Was the Court right in awarding larger portion of the piece of land in dispute to the Defendants after holding that both the Claimants and Defendants are joint owners and also have the same root of title? (Distilled from Ground 4 and 5 of the Notice of Appeal)
Appellants Submissions:
It is submitted that the High Court was wrong to have awarded a larger portion of the land in dispute to the Respondents after holding that the parties are joint owners who have the same root of title.
According to Counsel, the High Court did not resolve and there was no evidence on the important issue of ownership of the land in dispute being traced matrimonially or patrimonially and that the relationship between the parties through Chief Abogunloko, was partrinial and so equal. Citing Anyaegbunam v. Osaka (2000) 5 NWLR (657) 386 @ 400, he said, in the alternative, since the Respondents case is that their mother Raliatu Odofin, gave the land in dispute to her husband Chief Abogunloko, the transfer was absolute and she could no longer lay claim to it thereafter, as the gift was not obtained by fraud, as an exception to the law on the authority of Imah v. Okogbe (1993) 9 NWLR (316) 159 @ 173. Arguments are canvassed on joint ownership and possession which Counsel said the High Court misconceived, thereby holding the Appellants in trespass. The Court is urged to resolve the issue in Appellants favour.
Respondents Submissions:
The learned counsel submits that the High Court did not adjudge the parties as joint owners of the land in dispute and that the parties, by the case presented, are entitled to their portion/pieces of land through their respective great grandmother and not through Chief Abogunloko; their husband.
According to him, the Respondents prove their counter claim by credible before the High Court and that the Appellants have the onus to satisfy the Court that the decision by that Court is perverse, relying on Raphael v. Ezi (supra). The Court is urged to allow the judgement of the High Court to stand.
In the Appellants Reply brief, it is argued that since the Respondents admitted that both parties were born of the same father; Chief Abogunloko and that the land was handed over to him, all his children were inheritors and entitled to the land in equal share.
Resolution:
To start with, I should point out that contrary to the impression created by the formulation of the Appellants Issue 3, the High Court did not, in its nineteen (19) pages judgement, find that the parties are joint owners of the land claimed in the Respondents Counter Claim, which was granted in the judgement.
Counsel for the Appellants did not in the arguments under the issue demonstrate or even mention the portion of the judgement where such a finding was made. In addition, learned counsel also failed to refer to any pleadings or evidence to illustrate that in fact, the High Court awarded a larger portion of land to the Respondents, than was pleaded and proved by their evidence of the root of title claimed by them.
As may be easily observed, all that Counsel did under Issue 3 is to canvass round and about arguments on joint ownership of the land in dispute based on the failed root of title the Appellants pleaded and relied on for their claims.
The submissions aim to becloud and beguile the Court on the real issues decided by the High Court in the judgement appealed against and are bereft of merit. The issue is resolved against the Appellants.
Issue 4: The Claimants state further in respect of the preceding paragraph that the first settler at the area where the subject matter of this suit is situate is the Family of Baba Olomodia followed by the Apena Family and Chief Suberu Abogunloko.
It is submitted that the Appellants oral evidence was that they have been in equal possession of the land in dispute from time immemorial and exercised acts of ownership until they instituted the action before the High Court due to dissatisfaction with the interference by the Respondents. According to Counsel, there was no evidence that the ownership of the Appellants great grandfather was ever challenged and even if they were in possession on the mistaken belief that the land belonged to their ancestor, the Respondents conduct would amount to admission of ownership on the authority of Oparaji v. Ahihia (2012) 4 NWLR (1290) 266. He said the Respondents did not at the trial, offer reasonable explanations for the cause of delay in asserting their right to the land, citing Kayode v. Odutola (2001) 11 NWLR (725) 659 and argued further that the Appellants were deceived and/or fraudulently allowed equal possession of the land in dispute as their family property. That the Respondents have slept on their rights and cannot be allowed and to seek relief of trespass against the Appellants for delay, defeat, equity, or equity aids the vigilant and not the indolent and are caught up by laches, acquiescence and standing-by. Kaiyaoja v. Egunla (1974) LPELR-SC 325/1973 was referred to on the defence of laches and acquiescence and the Court is urged to dismiss the Respondents Counter Claim.
Respondents Submissions:
It is submitted that the defence of laches and acquiescence operate by way of estoppels and so a weapon of defence to be resorted to by the Respondents and not the Appellants who in any case, to rely on the defence must prove the following:-
(a) That the Appellants were in fact mistaken as to their own rights over the land;
(b) That the Appellant had in reliance as to their mistake expended money on the land;
(c) That the Respondents knew the existence of their own right which is inconsistent with the right claimed by the Appellants over the land;
(d) That the Respondents knew of the mistaken belief by the Appellants of their rights;
(e) That the Respondents encouraged the Appellants.
The case of Alade v. Alemuloke (1998-1993) 2 SCHLP, 487 on the application of the defence of laches, acquiescence and standing-by which is said not to avail the Appellants who regarded the Respondents as joint owners, was referred to.
The Court is urged to discountenance the Appellants argument and uphold the judgement by the High Court.
In the Appellants Reply brief, it is contended that being defendants to the Respondents Counter Claim, which is a separate action, defence of laches, acquiescence and standing by is available to the Appellants.
Resolution:
I should start by saying that the learned counsel for the Appellants is right when he said that the Appellants as defendants to the Respondents Counter Claim, can rely on the defence of laches, acquiescence and standing by in answer and defence of the counter claim, which is a separate and distinct action from the main action by them. Anozia v. A.G. Lagos State (2010) 15 NWLR (1216) 207, Falomo v. Onakanmi (2006) ALLFWLR (298) 1242, O.O.M.F. Limited v. N.A. & C.B. Limited (2008) 7 MJSC, 156. However for the defence to be of any legal use or benefit to a defendant to an action so as to avail him to effectively employ it as a weapon of defence, the law requires that such defences, which are equitable, must be specifically pleaded with all essential particulars in the statement of defence or defence to a counter claim, as the case may be. See Obueke v. Nnamchi (2006) ALL FWLR (313) 195, Alabi v. Doherty (2006) NWLR (299) 1527, (2005) 18 NWLR (957) 411, Onuwaje v. Ogbeide (1991) 3 NWLR (178) 147, Iheanacho v. Ejiogu (1995) 4 NWLR (389) 324, Alakija v. Abdulai (1998) 6 NWLR (552) 1, Isaac v. Imasuen (2007) ALL FWLR (376) 689 @ 710.
The Appellants did not plead the defences in their defence to the counter claim of the Respondents at the trial and although leave was granted by the Court for the Appellants raise fresh issues, ground 7 of the Notice of Appeal which attempts to complaint on the defence states that the Respondents counter claim is statute barred and caught by equitable doctrine of laches. However, no essential details of the defences were set out in the particular which only contain the claim of joint ownership and act of possessions which were rightly rejected by the High Court on ground of failure by the Appellants to adequately plead and sufficiently prove the sole root of title by traditional evidence relied by them for the claim of ownership or title to the land in dispute.
The alleged defences of laches and acquiescence do not and cannot avail the Appellants in respect of the land claimed by the Respondents in their counter claim and only constitute an attempt by the Appellants to bring back, by subterfuge, the failed claim of joint ownership and title based on a root they could not prove.
Being equitable, the defences of laches and acquiescence would only be available to a defendant when the following conditions, set out in Okereke v. Nwankwo (supra), are met:-
(a) That the defendant was mistaken as to his own rights over the land;
(b) That the defendant had in reliance as to his mistake expended money on the land;
(c) That the plaintiff knew of the existence of his own right which is inconsistent with the right claimed by the defendant over the land;
(d) That the plaintiff knew of the mistake belief by the defendant of his right;
(e) That the plaintiff encouraged the defendant in the defendants expenditure of money.
See also Lambe v. Aremu (2012) LPELR-9359 (CA), Awomukwu v. Awomukwu (2013) NWLR 22505 (CA), Jiwul v. Dimlong (2002) 9 NWLR (824) 154, Kayode v. Odutola (supra) also reported in (2001) 5 SC (Pt. II) 118.
The Appellants have failed from their defence to the Respondents Counter Claim, to show that any of the above conditions were met for the application of the defences as the defence to the counter claim, of four (4) paragraphs, merely pleaded that:-
1. The Claimants deny paragraph 33-36 of the Counter Claim and put the Counter Claimants to the strictest proof hereof.
2. With reference to paragraph 35 of Counter Claim the subject matter of this Suit at Eleran Igbe, Oke Egun, Ibeju, Lagos State does not belong to Late Madam Raliatu Ogunkoya Odofin but exclusively belongs to Late Chief Suberu Abogunloko and put the Counter Claimants to the strictest proof hereof.
3. The Counter Claimant are not entitled to any of the relief being sought for in the Counter Claim.
4. Whereof the claim of the Counter Claimant be dismissed.
Once again, ground 7 and its particulars on the Appellants Amended Notices of Appeal do not in any manner, howsoever, provide for any of the above conditions for the defences to avail the Appellants in this appeal. Submissions or arguments of Counsel in the Appellants brief do not constitute evidence that any of the conditions exists or is satisfied for the application of the defences. Ibikunle v. Lawani (2007) 3 NWLR (1022) 580, Daramola v. Attorney General, Ondo State (2000) 7 NWLR (665) 440, Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163.
There is no merit in the Appellants arguments under the issue and it is resolved against them.
In the final result, with the resolution of all the issues canvassed by the Appellants, against them, the appeal is left devoid of merit and liable to be dismissed. The appeal is dismissed for being unmeritorious and as a consequence, the judgment delivered by the High Court on the 22nd January, 2012 in the Appellants Suit No. LD/1193/2012 is hereby affirmed in its entirety.
Parties to bear their respective costs of prosecuting the appeal.
TIJJANI ABUBAKAR, J.C.A.: I had a preview of the leading Judgment prepared and rendered in this appeal by my Lord and learned brother, GARBA JCA. I am in complete agreement with the reasoning and conclusion and therefore adopt the judgment as my own. I join in holding that the appeal is devoid of merit and therefore deserves to be dismissed, it is hereby dismissed by me. I also join in affirming the judgment of the lower Court delivered on the 22nd day of January, 2012 in suit No. LD/1193/2012.
TOBI EBIOWEI, J.C.A.: I have seen and read in draft the judgment just delivered by my learned brother MOHAMMED LAWAL GARBA. JCA. I agree entirely with the reasons and conclusion reached in the said judgment in adding my voice to the dismissal of the appeal and in upholding the decision of the lower Court.
In upholding the decision of the lower Court. I wish to add my voice, by way of echo to the regular abuse of parties through their counsel of the expression “lack of fair hearing”. The allegation of lack of fair hearing is a serious allegation as it relates to trial either in Court or in a Tribunal. Indeed, I make bold to say, in any aspect of human life. That is why, it is one of the guaranteed rights which are fundamental. This right is entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. This right is so fundamental that any proceedings done without due regard to it will be declared void. In WAGBATSOMA VS. FRN (2018) LPELR-43722 (SC) 29-30, the Court held:
“This issue is quite fundamental for it is well settled that any proceedings conducted in breach of a party’s Fundamental Right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void. In KOTOYE VS C.B.N. (1989)1 NWLR (PT.98) 419 at 488 C-D it was held thus:
‘The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. The order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice which is expressed in the maxim: audi alteram partem.’
See also: A.G. RIVERS STATE VS UDE & ORS. (2006) 17 NWLR (PT.1008) 436; (2006) LPELR 626 (SC) a 19 B –D; ODEDO VS P.D.P. (2015) LPELR-24738 (SC) a 38 39 C-B; HON. JUSTICE TITUS ADEWUYI OYEYEMI (Rtd.) VS. HON. TIMOTHY OWOEYE & ANOR. (2017) LPELR- 41903 (SC) it 56 B E.”
Realizing how fundamental fair hearing is, to validate any proceedings before a Court or Tribunal, lawyers on the losing end of litigant has embrace using the lack of it as a ready complain to overturn the decision of a Court of law. Some lawyers have seen it as an escape route for cases poorly conducted. For them, it is the life time for a sinking case. For some, it is like, no matter how bad your case in the lower Court, just hold onto a ground on lack of fair hearing and you are safe.
The point must be made that the allegation of lack of fair hearing must be made responsibly and not puriously. Counsel should not use it in such a way as to blackmail any Court whether lower or appellate Court.
The other issue, I wish to add a voice to is on the issue of how binding is the report of a customary arbitration? My learned brother has aptly stated the legal position and I do not intend to add anything in that wise. However, one regular point raised by people who had willingly submitted to arbitration is to suddenly back out simply because the outcome did not favour them. This is a wrong approach and should not be encouraged by any Court of law. Submitting to customary arbitration should not be seen as a game of “try your luck”. No person who willingly submitted to customary arbitration should be allowed to deny the report simply because the report does not favour him. The test is. whether, if the result had favoured such a person will he have denied the report? If it is NO, then no Court should allow a person deny the report of an arbitration he willingly submitted to from beginning and participated in till the end simply because the report does not favour him. It is my firm view that the Appellants cannot deny Exhibit D3.
I just felt like adding this little contribution to the lucid judgment delivered by my learned brother, Mohammed Lawal Garba JCA.
Appearances:
O. Okpeseyi, SAN with him, A. Oshin, S. C. Orazuhume (Ms.) and S. Anunobi For Appellant(s)
Respondents not represented For Respondent(s)
