ALHAJI YARO GANGARIYA & ANOR v. THE REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA
(1992)LCN/0111(CA)
In The Court of Appeal of Nigeria
Wednesday, the 15th day of April, 1992
Case Number: CA/I/237/88
RATIO
It is the duty of the plaintiff to succeed on the strength of its own case and not to rely on the weakness of the defendant’s case, unless the evidence of the defence supports the plaintiffs’ case; which is not so in the action on appeal in hand. Kodilinye v. Odu 2WACA 336, 337,338; Akpan Awo v. Cookey Gam 2 NLR 100; Amasa v. Kososi (1986) 4 NWLR (Pt.33) 57; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413. PER OGUNDERE J.C.A.
It is also trite law that a Court of Appeal should not interfere with the findings of a trial court based on the credibility of a witness unless such findings are perverse. A Court of Appeal may however draw proper conclusions from properly admitted undisputed evidence at the trial different from that of a trial court. Akinloye v. Eyiyola (1968) NMLR 92, 95; Akinola v. Oluwo & Ors. (1962) 1 All NLR 224, 227; (1962) 1 SCNLR 352. As indicated earlier, the findings in the court below did not support its conclusion or decision. PER OGUNDERE J.C.A.
JUSTICES:
JOSEPH DIEKOLA OGUNDERE Justice of The Court of Appeal of Nigeria
EMANUEL OBIOMA OGWUEGBU Justice of The Court of Appeal of Nigeria
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
Between
- ALHAJI YARO GANGARIYA
2. ALHAJI MONMOGA
(On behalf of themselves and other members of Hausa Community and other interested parties resident in Sabo Quarters Ilare, Ile-Ife or anywhere) – Appellant(s)
AND
THE REGISTERED TRUSTEES OF METHODIST CHURCH OF NIGERIA – Respondent(s)
OGWUEGBU J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of an Ife High Court holden at Ile-Ife dated 14/6/88. The plaintiff sued the defendant in a representative capacity. The claim as set out in paragraph 43 of the amended statement of claim reads:-
“(a) Declaration that the plaintiff’s entitled to statutory right of occupancy to the land in dispute which forms part of the land granted to it in 1953 which is particularly shown and delineated on the plaintiffs’ survey plan No.PFY.923 of 13/11/87 verged blue.
(b) N 10,000.00 general damages for trespass committed on the land in dispute by unlawfully entering the land between 1986-1987 without the consent and authority of the plaintiff and started building operation on the land. The land is at all material time in possession of the plaintiff.
(c) Perpetual injunction restraining the defendants, their agents, servants and privies from further entering the land in dispute or tampering with the plaintiffs’ survey pillars on the plaintiff’s land on the land in dispute.
The action was tried on the pleadings filed and exchanged by the patties. In a reserved judgment, the learned trial Judge granted all the three reliefs claimed by the plaintiff. As against N10, 000.00 general damages claimed by the plaintiff, N500.00 (Five hundred naira) was awarded.
The defendants were not satisfied with the decision and appealed to this court. The notice of appeal filed on 27/6/88 contained five grounds of appeal. This court granted leave to amend the notice of appeal on 28/11/90. The amended notice of appeal contains ten grounds of appeal which without their particulars read as follows:-
“1. The learned trial Judge erred in law and misdirected himself on the facts when he held that the land was granted to the plaintiff which has no locus standi to institute the action thereby arriving at a wrong conclusion.
2. The learned trial Judge was in serious error of law when he held:
“the resultant effect is that Ooni Aderemi granted and conveyed the land to Rev. D. B. Esan on trust (italics mine) for Methodist Church, Ife a juristic person.”
When one considers the effect of paragraphs 17 and 18 of the amended statement of claim.
3. Having failed to assess and evaluate adequately the evidence, relating to the registration under the Land (Perpetual Succession) Ac: Cap.98 of the Laws of the Federation and proof thereto the learned trial Judge erred in law and thereby erroneously held/concluded that:
“Going further down the document, Exhibit P1, the recitals described The Registered Number of the Trustees as WL 3421/3. In other words the Trustee was registered. The quarrel of Mr. Azeez was that the
Trustee was not registered, the certificate was not produced, the learned counsel has forgotten that this (Exhibit PI) was registered in 1964. This is about 23 years old when this action was taken in 1987 …
4. The learned trial Judge erred in law when he held that the plaintiff was entitled to the first relief claimed when there was no Plan No. PFY 923 of 13th November, 1987 or any reply to the Statement of Defence in law before the court.
5. The learned trial Judge erred in law by failing to give adequate consideration to the Defence of the Appellants and thereby came to a wrong conclusion.
6. The learned trial Judge erred in law by failing to dismiss the Respondents’ case and hold that there was no grant of the land in dispute to the respondents as the purported grant to the respondent was ineffective null and void by reason of their grantor having no power to make the grant.
7. The learned trial Judge erred and misdirected himself on facts when he failed to dismiss the respondent’s claim when on the pleadings and evidence led; it was shown clearly that the land in dispute was not included in the land purportedly granted to the Respondent by Ooni Aderemi.
8. The learned trial Judge erred in law when he allowed the respondent’s claim in trespass when the respondent was never in possession of the land.
9. The learned trial Judge erred in law by granting an order of injunction against the appellant in favour of the Respondent when the conditions precedent to making of such order was absent.
10. The learned trial Judge erred in law by holding that the appellants were licensees on the land they occupied when that was not the case of the respondent and no such issue was raised by the parties before the court.”
I will hereinafter refer the defendants as the appellants and the plaintiff as the respondent.
The appellants filed their amended brief of argument on 14/12/90 with the leave of this court. The respondent also filed its amended brief of argument on 29/1/91.
In paragraph three of the appellants’ amended brief of argument the following six issues are submitted as arising for determination in the appeal:
“(i) Whether the plaintiff showed that the land in dispute was part of the land granted to it by Ooni Aderemi in 1953.
(ii) Whether the grant of the land to the plaintiff in 1953 by Ooni Aderemi was not void having regard to the prior grant of the land to the defendants by Ooni Ajagun who was Ooni Aderemi’s predecessor.
(iii) Whether the learned trial Judge properly evaluated the evidence led before him to have given judgment to the plaintiffs.
(vi) Whether the learned trial Judge was right in making out an entirely different case for the plaintiffs from that which they made in their writ of summons and statement of claim.”
The respondent on its part identified five issues for determination in the appeal:
“1. Whether the respondent proved its title to the land in dispute and whether it forms part of the land adjacent to the respondent’s undisputed land granted by Ooni Aderemi to the respondent in 1953.
2. Whether or not the appellants prove (sic) that Ooni Ajagun ever granted the land in dispute to the appellant before 1953 in view of paragraphs 6, 7 and 8 of the appellants’ pleadings and evidence led by them.
3. Who was in possession of the land in dispute from the evidence and accepted facts of the trial court in this case between the appellants and the respondents or whether or not the respondent was in possession to entitle him to judgment in trespass and injunction.
4. Whether or not the trial court properly evaluated all the issues arising from the pleadings and evidence before it.
5. Was it proper to draw inference from facts adduced before it and counsel address to come to the conclusion that the appellants from the case put forward were a (sic) licensee (sic) or was the issue of “Licensee” raised by the mal court suo motu?”
The two sets of issues formulated by both parties cover the same grounds and I will consider those identified by the appellants in this judgment and in the course of that, answer those of the respondent where necessary.
It was the case of the respondent that the land in dispute forms part of the vacant land granted to it by Ooni Oba Aderemi in 1953 as shown in Survey Plan No. PFY 923 – Exhibit “P1”. The respondent tendered various Exhibits – “P1” to “P10” in support of its claim. Exhibit “P1” is a certified true copy of the certificate of title of the plaintiff with the survey plan of the land attached to it. Exhibit “P2” is the dispute survey plan of the land showing the area verged blue as being the cause of action or the area in dispute. In Exhibit “P2”, the respondent showed the position of the appellants’ settlement at the time the land was granted to it.
It was the respondents’ case that it temporarily allotted the land in dispute to the Ife Local Council for use as abattoir pending the construction of its own. That when the Local Council completed its new abattoir, it vacated the respondent’s land and moved to its new site in 1986.
The respondents’ stated that the land reverted to it and thereafter the appellants entered the portion edged blue in Exhibit “P2”, bulldozed it and started building construction on it without its consent or authority.
The appellants in their pleadings and evidence stated that the land in dispute edged Red in Exhibit “D1” was granted to them by Ooni Ajagun who reigned before Ooni Aderemi. That the appellants granted permission to the Health Council, Ife to build an abattoir on the land in dispute and when the abbatoir was removed to a new place, the Health Council wrote Exhibit P.7 informing the appellants that they could take back the land.
The above is the summary of the rival claims of both parties. They are however agreed that the disputed land is stool land which is vested in the Ooni who was the authority to make grant of the land.
Before I go further, I will like to deal with the notice of preliminary objection raised in paragraph 2 of the respondents’ amended brief of argument. This was not argued at the hearing of the appeal and is therefore treated as having been abandoned. But be that as it may, the appellants after obtaining the leave of this court on 28/11/90 to amend their notice of appeal filed their amended notice to appeal dated 12/12/90 on 14/12/90. Even if the objection was taken at the hearing of the appeal, it would not have succeeded.
Another preliminary issue raised by the respondent in paragraph 3 of its amended brief of argument is that no issue was formulated in respect of grounds 1, 2, 3 and 4 of the amended grounds of appeal. I agree with the learned counsel for the respondent and since they were not argued in the brief, they are deemed abandoned. I accordingly strike them out.
Arguing the appeal, Mr. Olasope for the appellant adopted the appellants’ amended notice of appeal. He stated that the most important issue for determination is issue NO.1 at pages 6-9 of the appellants’ amended brief of argument namely, whether the respondent proved that the land in dispute forms part of the land granted to it in 1953.
It was his submission that from the pleadings in the lower court, trouble started when the abattoir was moved from the land in dispute to somewhere along Ede Road, Ile-Ife. He referred to page 16 from line 4 of the record of appeal where PW4 testified that the land of the respondent (plaintiff) is five hundred yards away from the slaughter slab (abattoir). That the respondent is now claiming that the slaughter slab is its land. He stated that this was consistent with the appellants’ case that the land in dispute is far away from the land granted to the respondent.
Learned counsel also stated that DW1 testified that the slaughter slab is far away from the land granted to the respondent. Mr. Olasope stated that PW2 – the licensed surveyor who testified for the respondent did not testify as to the position of the slaughter slab and the learned trial Judge made no finding on the slaughter slab but accepted the evidence of PW4.
It was his case that the submission of the respondent should have been dismissed on that ground since it did not show that the land in dispute is part of the land granted to it. We were referred to page 52 from line 14 of the record of appeal where the learned trial Judge dealt with the evidence of PW4. We were urged to draw our own conclusions from the pleadings and the evidence. Counsel cited the cases of Woluchem v. Gudi (1981) 5 SC 291, Fatoyinbo v. Williams (1956) 1 FSC 87; (1956) SCNLR 274, Ozokpo v. Paul (1990) 2 NWLR (Pt.133) 494 at 515 John Holt v. Ezeafulukwe (1990) 2 NWLR (Pt.132) 322 at 338.
Learned counsel submitted on Issue Six that the learned trial Judge suo motu raised an issue which was not the case of the parties. The trial Judge held that the appellants were licensees on the land. He contended that this was not the case of the respondent or the appellants. He stated that the appellant relied on grant made over seventy years ago. We were referred to paragraph 6 of the amended statement of defence. Learned counsel stated that the trial Judge gave judgment to the respondent on this issue. We were referred to page 54 from line 4 of the record of appeal.
Chief Fadugba for the respondents in replying to issue one adopted the respondent’s brief filed on 29/1/91. It was his submission that the appellants’ arguments in their brief of argument and the oral argument advanced in this court are at variance and do not support the issue raised in Issue One.
Chief Fadugba stated that the appellants are trying to confuse the two slaughter slabs – the original slaughter slab outside the land in dispute and the latter slab said to be 500 yards away. That this is the slaughter slab at Igbo Idio. We were referred to paragraph 9 of the amended statement of defence. He stated that this slab was transferred in 1949. In the circumstances, the appellants he argued cannot be said to be using the slab for over seventy years.
He stated that the land in dispute is at Saba near the Methodist Church. That the original slab was at Igbo Idio and therefore not the one in the land in dispute. He said that the land in dispute is contiguous to the Methodist Church land as shown in Exhibits “P2”, “D1” and “D2” and the reference of a slab in the judgment and the evidence of PW4 are in respect of the slaughter slab at Igbo Idio. That the abattoir at Igbo Idio is outside the land in dispute.
Chief Fadugba submitted that the evidence of DW1 was not reliable. He agreed that the trial Judge did not consider the evidence of DW1 but he considered in Exhibit “D1” tendered by DW1. Learned counsel referred to paragraph 5 of the amended statement of defence. He stated that DW1 copied Exhibit “D1” from Exhibit “D2”. That the trial Judge did not see the relevance of the slaughter slab and made no finding on it. He referred the court to page 55 lines 3-14 of the record of appeal. We were urged to examine Exhibits “D1” and “D2” and the evidence of DW1 under cross-examination.
Chief Fadugba stated that the learned trial Judge made findings of the survey plan tendered by the appellants and the survey beacons on Exhibit “D1” are different from those in Exhibit “D2”. He referred particularly to Beacon Nos. 7035, 7036 and 7039 and the position of the office building. He submitted that DW1 copied a wrong thing.
It was his contention that what was pleaded in paragraph six of the amended statement of claim amounted to license and it was not the court that raised the issue suo motu. That the appellants pleaded permission and consent.
He stated that there is sufficient evidence that the land in dispute forms part of the land granted to the respondent. He referred to the evidence of PW6 at page 18 lines 23-27 that of PW4 at page 15 lines 4-15 of the record and that of PW5 at page 15. He said that PW5 was an eye witness and that the trial court accepted his evidence as well as that of PW4 and PW6.
Learned counsel submitted that the appellants pay rent to the Council for the use of the slaughter slab and herding of their cows. That it is the council who should contest the title of the respondent. In addition, the appellant wrote to Ooni in 1986 to release the land to them. We were urged to dismiss this appeal.
I have considered the briefs of argument filed by both counsel and their oral submissions. I have also considered the pleadings, the evidence led in the court below and all the exhibits’ tendered in the said court.
From my point of view, the issue raised before the court below was straight forward. The plaintiff/respondent tendered Exhibits “P1” and “P10”. Each of them has a survey plan attached to it showing the parcel of land granted to the respondent. Exhibit “P2” is the dispute survey plan tendered by the respondent. How does each of the three survey plans relate to each other and the area edged blue in Exhibit “P2”? This area edged blue is the portion claimed by the respondent as being in dispute.
If it falls within Exhibits “P1” or “P10” that in my view will be the end of the matter.
If on the other hand the area edged blue in Exhibit “P2” falls within Survey Plan Exhibit “D2” tendered by the appellants, it will then mean that the disputed area belongs to the appellants. All the survey plans-Exhibit “P1”, “P10”, “P2”, and “D2” have to be related one to another in order to get a clear view of the contentions of the parties.
In the light of the above, I will allow the appeal and remit the case to the court below with an order that a licensed surveyor agreed by both parties be appointed by the court below to prepare a composite survey plan and show where the area edged blue in Exhibit “P2” falls in within the land shown in Exhibit “P1” or “P10” or “D2”.
After the above exercise, the court below should proceed to enter judgment for whichever party is shown to be entitled to the land from the exercise. Both parties should jointly and equally bear the cost of the exercise. The appellants are entitled to costs which I assess at N300.00.
MUHAMMAD, J.C.A.: I agree.
OGUNDERE J.C.A.: There is no doubt that the survey plans of the defendants have not been, super imposed on the plaintiffs/respondents’ land to ascertain whether or not the disputed land is within the original grant of land to the respondents by the Ooni Sir Adesoji Aderemi. P.W.4 Chief (Dr.) Fabunmi at p.15 line 19-21 of the Record testified thus:-
“As at 1953, the Hausa Community was about 500 yards away from the land in dispute.”
Under cross-examination at p.16 lines 3-5, he said:
“The defendants’ slaughter slab was never their settlement. At that time it (slaughter house) was far away from the land granted the plaintiffs. I do not know that the slaughter house at Sabo, Ife has been moved away.”
P.W.5 Dele Williams a worker with Ife Divisional Council 1940-1976 testified at page 17, lines 7-8 and lines 19-25 testified:
“I know the land in dispute. It is at Obalufon Area, Ile-Ife” The land was subsequently surveyed. The surveyor was a Government Surveyor. It was a vacant land then, there is now a slaughter slab on the land but there was no slaughter slab on it in 1953 when we took the surveyor there. There was no Sabo Quarter in that area at that time.”
P.W.6 Dr. Bamgboye at p.18 line 29-35 p.20 (2-3) said:-
“There was a slaughter slab belonging to Oranmiyan Local Government in the land in dispute. Before the Oranmiyan Local Government erected their slaughter slab on the land in dispute, they sought for the permission of the plaintiffs which was granted them”
“The slaughter slab has now been removed from the land in dispute.”
Earlier on at pp.13 and 14 P. W.3 Augustine Fabunmi, under cross examination said:-
“It is no more being used as a slaughter slab. It is true that the Hausa Community have built houses round the slaughter slab many years ago.”
The plaintiffs’ case was considerably jeopardised by the Testimony of P. W.2, Peter Ogunleye a surveyor who tendered only the plan of the land in dispute which was commissioned by the plaintiff. It was admitted as Exhibit P.2. He was not led to produce a composite survey plan of the Exhibit P.2 and those admitted from the side of the defence, Exhibit D1.
In contrast D.W.1 Adebayo Adeyemi, licensed lands surveyors drew up a land survey plan Exhibit D1 for the defence. He came across plaintiffs’ plan Exhibit P2 and saw Exhibit P1. So as he could not relate plaintiffs’ survey plans Exhibit P1 to P2 because in Exhibit P2 there were no bearings, he said he superimposed Exhibit P1 on P2 and chated the co-ordinates on Exhibit D1 to Exhibit P1. The distance of the slaughter slab on Exhibit D1 is outside Exhibit P1. Under cross examination he admitted that Exhibit D2 drawn by Bioku tendered at the instance of the plaintiffs is the same as Exhibit D1, and that the slaughter slab is a small portion of the disputed land.
D.W.3 Babalola said under cross examination that the land on which the Hausa built their houses round the slaughter slab does not belong to the Church.
The learned trial Judge at p.52 found that the slaughter slab which the defendant heavily depended on was 500 yards away from the land granted the plaintiff. The opinion of the learned trial Judge that the Certificates of Title Exhibit P1 executed on 27th August 1964 and duly registered was twenty years old and therefore its recitals are sufficient evidence of the facts therein would seem to be misconceived having regards to Johnson & Ors. v. Lawanson & Anor. (1971) 1 All NLR 56, 57 that under section 130 Evidence Act, what the recital in a Conveyance must state is a contract 20 years old at the time the conveyance was executed not contracts 20 years old from the date of its execution to the date it was tendered in Court. Also, that Maurice Goalin Ltd. v. Wahab Atanda Aminu, Privy Council Appeal NO.17 of 1957 in which 20 years was calculated from the date of the Deed till the date it was tendered was wrongly decided. There is also the question of Exhibit 7 by which Oranmiyan Local Government granted the former slaughtering house at Sabo measuring 609.6m on lease to the appellants.
In my humble opinion the findings of the learned trial Judge in favour of the respondents are perverse in so far as it purported to hold that the plaintiff established their case by a proponderance of evidence. It could not be said that the plaintiff/respondent adduced conclusive evidence to show that the land in dispute was part of the land granted it in 1953. It is the duty of the plaintiff to succeed on the strength of its own case and not to rely on the weakness of the defendant’s case, unless the evidence of the defence supports the plaintiffs’ case; which is not so in the action on appeal in hand. Kodilinye v. Odu 2WACA 336, 337,338; Akpan Awo v. Cookey Gam 2 NLR 100; Amasa v. Kososi (1986) 4 NWLR (Pt.33) 57; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413.
It is also trite law that a Court of Appeal should not interfere with the findings of a trial court based on the credibility of a witnesses unless such findings are perverse. A Court of Appeal may however draw proper conclusions from properly admitted undisputed evidence at the trial different from that of a trial court. Akinloye v. Eyiyola (1968) NMLR 92, 95; Akinola v. Oluwo & Ors. (1962) 1 All NLR 224, 227; (1962) 1 SCNLR 352. As indicated earlier, the findings in the court below did not support its conclusion or decision.
In my humble view, the provisions of section 16 of the Court of Appeal Act, Cap.75 Laws of Nigeria, 1990, cannot, on appeal, save a plaintiff who failed to prove his case.
In the circumstances, this appeal is allowed with N450 costs in favour of the appellant and against the respondent.
Appeal allowed
Appearances
Olasope For Appellant
AND
Chief Fadugba For Respondent
