BAKARE ALABI AKINROPO & ORS. v. RAFIU IDOWU YUSUF
(2013)LCN/5982(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2013
CA/I/220/2009
RATIO
PARTITIONING: DEFINITION
Partitioning as rightly submitted by the learned appellant’s counsel in the ordinary sense is an act of dividing a property into portions. As a legal terminology, partitioning family land is one of the methods by which ownership of family land is determined so that each member or section has absolute right to its partitioned portion see Ikegbunam v. Onwubuya (2007) All FWLR (Pt.345) 379 at 390.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. BAKARE ALABI AKINROPO
2. CHIEF SIKIRU ALABI AKINROPO
3. AMOS OLADEPO AKINROPO
4. RAMONU ISHOLA AKINROPO
5. KAMORU OLAIYA AKINROPO Appellant(s)
AND
RAFIU IDOWU YUSUF Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): The plaintiffs at the lower court who are appellants herein are appealing against the judgment of Osun State High Court sitting at Ikire Judicial Division presided over by Hon. Justice J. O. Ogunleye, in suit nos: HRE/9/2009.
The underlay of this case is that sometime between 2004 and 2006 the defendant was seen on the disputed piece or parcel of land lying and situate along Ibadan/Ile-Ife Expressway, Ikire in Irewole Local Government. While the plaintiffs/appellants are laying claim to the parcel of land as their own inheritance by virtue of the partitioning of Gbagboye’s land, the defendant/respondent is laying claim to same on the ground that he bought it from Samuratu Ojewunmi one of Gbagboye’s children. Believing that the defendant encroached on their land without their authority and permission the appellants on behalf of the Akinropo section of the Gbagboye family sued the defendant. In their Writ of Summons issued 27th April, 2007 and their Amended Statement of Claim dated 27th May, 2008, the plaintiffs at the lower court sought the following claims against the defendant:
i. A declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy/Customary Right of Occupancy in respect of that piece or parcel of Land lying, situate and being along Ibadan/Ile-Ife Express way Ikire, Irewole Local Government of Osun State of Nigeria.
ii. Ten Thousand Naira (N10,000:00) damages for unlawful trespass on the said piece or parcel of Land.
iii. Perpetual injunction against the Defendant from further trespass on the said piece or parcel of Land.
The appellants’ contention is that their great ancestor Gbagboye had 3 wives who formed the 3 branches or sections of Gbagboye’s family. Upon his death Gbagboye’s children from the 3 wives inherited his properties including the land the subject matter that led to this appeal. The 3 branches of Gbagboye’s descendants are namely: (1) Ojewunmi, (2) Okoro and (3) Osunjinmi. The 3 branches partitioned the parcel of land lying and situate at the left side of Ibadan/Ile-lfe Expressway Ikire being land over which their said great ancestor Gbagboye exercised all rights including farming thereon in his lifetime. Consequent upon the partitioning of the said land, it devolved on Gbagboye’s descendants as follows:
a) Okoro who begat Akinropo the ancestor of the plaintiffs inherited the West side of the land starting from lbadan/lfe Expressway.
b) Ojewunmi who begat Samuratu amongst others inherited the middle portion of the land also from lbadan/lfe Expressway; and
c) Osunjinmi section inherited the East end of the land starting from Ibadan/Ife Expressway. Each of the divisions runs vertically Northward Gbagboye land as a whole share the following boundaries:
1. In the East by a piece of land presently occupied by Alasepe Church, Ikire.
2. In the West by Akinrin family land.
3. In the North by Atabintin family land.
4. In the South by Ibadan/Ife Expressway.
Upon the partition each section or branch preserves their portion for themselves and their children. Sometime in 2004 or thereabout the defendant was found on the plaintiffs’ portion of the land. The plaintiffs confronted him with the facts contained in their Statement of Claim. In 2006 and early 2007, the plaintiffs found that their said portion of the land had been cleared by the defendant without prior authority and or permission of the plaintiffs or any of the Akinropo family members. Despite their warning, the defendant refused to yield to the warning as he continued the act of trespass hence the suit at the court below. The respondent’s own position is that when he wanted to build his church he approached one Chief Yekini Ogundipe and expressed interest in purchasing a parcel of land lying and situate along Ibadan/Ile-Ife Expressway in Irewole Local Government. The said Chief Yekini Ogundipe who is the head of the Akinropo section of Gbagboye family informed him that the land was the bonafide property of Samuratu one of the children of Gbagboye. Based upon the said information the defendant approached Samuratu Ojewunmi for the purchase of the disputed land. In the course of the defendant’s investigation regarding ownership of the land, Samuratu Ojewunmi gave him a copy of the statement of claim filed against her in the High Court Ikire in HRE/8/05 in which the plaintiff therein sued her but later withdrew the case. Based on all these the defendant was assured that the title of Samuratu Ojewunmi was genuine hence he bought the land in 2005. The defendant stated that this land lying and situate along lbadan/Ille-Ife Expressway Ikire is bounded as follows:
Left side by Rufai Honourable
Back side by Atabintin family land
Front side by Road
Right side by Akinremi Ajayi’s land.
The parties exchanged pleadings, led evidence at the trial, tendered exhibits and at the conclusion of the hearing the learned counsel for the parties addressed the court. In a considered judgment delivered on 3rd March, 2009 the learned trial judge dismissed the plaintiffs’ claims. Being dissatisfied with the decision of the lower court the plaintiffs/appellants appealed to this court vide their Notice of Appeal filed 24th March, 2009 and containing 5 grounds of appeal.
In compliance with the Rules of this court the parties filed their respective briefs of argument. The Appellants Brief of Argument and Appellants Reply to the Respondent’s Brief of Argument settled by Chief Kayode Alli-Balogun were dated and filed 11th August, 2009 and 12th July, 2010 respectively. The Brief of Argument settled by A. O. Biosoluwa-Adenuga Esq. was dated and filed 2nd July, 2010. It was deemed as properly filed on 5th July, 2010. Kayode Alli-Balogun for the appellants at the hearing of this appeal on 15th January, 2013 adopted both their Brief of Argument and Reply to the Respondent’s Brief and urged the court to allow the appeal. On the part of the learned counsel for the respondent S. A. Oyesomi Esq. adopted their Brief of Argument and urged the court to dismiss the appeal and uphold the judgment of the lower court.
Chief Kayode Alli Balogun, learned counsel for the appellants has posited before this court the following 3 issues for determination of the appeal. Counsel on both sides argued the appeal based on the 3 issues and they read thus:
1. Whether the learned trial Judge properly evaluated the evidence before him and ascribed probate (sic) value to them before giving judgment. (Grounds 1, 2 and 5).
2. Whether the learned trial Judge was correct to solely relied (sic) on the written address of the defendant (sic) counsel in preference to the pleadings and evidence before him. (Ground 3).
3. Whether the learned trial Judge was correct to place much reliance on Exhibit B, a report of an Advisory Body to Akire of lkire land in preference to the evidence before the court. (Ground 4).
ISSUE 1:
Whether the learned trial Judge properly evaluated the evidence before him and ascribed probative value to them before giving judgment – this issue derives its basis from grounds 1, 2 and 5 of the appellants’ Notice of Appeal
In support of this issue, Chief Kayode Alli Balogun, learned counsel for the appellants submitted that a trial court in evaluating evidence before it must put all the evidence adduced by each side on an imaginary scale and thoroughly examine same in order to determine who has the upper hand but that the learned trial judge failed to do so. Counsel cited the authorities of Atolagbe vs. Shorun (1985) 1 NWLR (Pt.2) 360; Adimora vs. Ajufo (1988) NWLR (Pt.80) 1; Bello vs. Eweka (1981) 1 SC 101 and Owoade vs. Omotola (1988) 2 NWLR (Pt.77) 413 as well as section 135 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria (LFN) 1990.
On his own part A. O. Biosoluwa-Adenuga, learned counsel for the respondent in his Respondent’s Brief submitted that the learned trial Judge properly assessed and evaluated the totality of the evidence adduced on both sides.
Now it is in the evidence of the plaintiffs at the lower court that at the death of their grandfather Gbagboye, that his land lying and situate along Ibadan/Ile-Ife Expressway was partitioned among the 3 sections/branches of his family. The 3 sections made up of (1) the Okoro section to which the plaintiffs belong; (2) the Ojewumi section to which Samuratu the vendor belong and (3) the Osunjinmi section each holding unto its own portion of inheritance.
Partitioning as rightly submitted by the learned appellant’s counsel in the ordinary sense is an act of dividing a property into portions. As a legal terminology, partitioning family land is one of the methods by which ownership of family land is determined so that each member or section has absolute right to its partitioned portion see Ikegbunam v. Onwubuya (2007) All FWLR (Pt.345) 379 at 390.
While referring the court to page 43 of the record, the learned appellants’ counsel contended that in obvious misunderstanding of the plaintiffs’ case and in actual disregard of the principle of evaluation of evidence at the trial, that the learned trial Judge said “I therefore go to issues (sic) raised by the plaintiff’, but thereafter raised issue on his own which were not answered or made.
Before going on to the conclusion as reached on record by the trial Judge, I need to quote accurately what he said in this regard as what the learned appellants’ counsel has quoted above is not accurate. The learned trial Judge said at the said page 43 of the Record of Appeal 1st paragraph thereof, “I therefore go to the 1st issue raised by the plaintiffs. Were there (sic) claim proved by preponderance of evidence?” It was in trying to deal with the 1st issue as raised by the plaintiffs before him, that the learned trial Judge proceeded to pick out the disparity and contradictions as well as issues arising from the respective evidence of the plaintiffs and the defendant. These issues and or disparities which as enumerated by him are 7 in number informed the learned trial Judge to reach the conclusion thus:
“From the totality of the evidence before me and arising from 1 to 7 above, I hold that the plaintiffs have not proved their claims on a balance of probability to entitle them to judgment and I dismiss the 3 claims accordingly.”
The learned counsel for the appellants is of the contention that the trial court failed to take due account of the entire evidence before it and ascribe probative value to it. Therefore that the judgment is perverse leading to miscarriage of Justice and as such must not be allowed to stand. He referred to Osifo vs. Okogbo Community Bank Ltd (2007) All FWIR (pt.372) 1803 at 1824.
It is actually not in issue that the property of Gbagboye was partitioned after his death and that the plaintiffs/appellants belong to the Okoro section/branch. By the said partitioning each section/branch is entitled to the exclusivity of its portion. Irrespective of this fact, the onus still lies on the plaintiff in an action for declaration of title to establish his claim on the balance of probabilities in order to succeed. See Vincent Bello vs. Magnus Eweka (1981) 1 SC 101, 102; Onu vs. Agu (1996) 5-9 SCNJ 74, 87; and Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336.
Samuratu Ojewunmi Fadele (DW1) as per paragraph 7 of their statement of defence is a descendant of Gbagboye in Ejemu’s compound. In her evidence DW1 acknowledged Ojewunmi as her grandfather thus placing her in the Ojewunmi section/branch of Gbagboye’s descendants. As I just pointed out, upon the partition of Gbagboye’s property each branch/section holds its portion separate and distinct from the others. To have found the defendant (DW3) on the plaintiffs’ portion of land at some point in 2005 and for the said defendant to claim that the same was sold to him by Samuratu Ojewunmi Fadele (DW1) is a manifest case of encroachment and or trespass on the plaintiffs’ portion.
In the evidence of PW1 (Muritala Akinrole) through whom Exhibit A was admitted at the trial court, the said Exhibit A contains the judgment of the Grade C1 Customary Court Oja-Ale between the said Muritala Akinrole & 4 Ors. vs. Samuratu Ojewunmi (herein the DW1). It was delivered 14th August, 2006. This PW1 is from the Osunjinmi branch/section of the Gbagboye family. Exhibit A was the judgment his branch/section got against Samuratu Ojewunmi (the DW1 and vendor of the land herein in dispute) for selling a portion of land belonging to the former.
This was the nature of the evidence before the trial court, Be that as it may, in resolving what appears to be the 1st issue raised by the learned counsel of the plaintiffs, the trial Judge at page 43 of its judgment raised his own issues which formed the basis of the judgment herein on appeal. The issues as raised by the trial court as earlier noted are 7 in number. Given the evidence as it were before the trial court and its findings thereon, this court is indeed of the view that the learned trial Judge failed to evaluate and properly appraise those 7 issues. The totality of the evidence as led by the parties ought to have been considered by the trial court and probative value ascribed to them in order to know which party has the upper hand. Being the primary function of a trial court the appellate court Can interfere with the trial court’s findings Where and when such evaluation is not carried out at all or not properly carried out. See the cases of Abisi vs. Ekwealor (1993) 6 NWLR (Pt.302) 643; Enang vs. Adu (1981) 11-12 SC 25 at 42 and Ike vs. Ugboaja (1993) 6 NWLR (Pt.301) 539. It is the view of this court in the instant appeal that there was no proper or in depth evaluation of the evidence led before it neither was there an ascription of probative value to it. The answer to issue (1) as raised above is therefore in the negative.
ISSUE 2
Whether the learned trial Judge was correct to solely rely on the written address of the defendant counsel in preference to the pleadings and evidence before him. This issue is predicated on ground 3 of the appellants’ grounds of argument.
Now it seems that the only manifest grouse of the learned counsel of the appellants under issue (2) is that the trial Judge started his judgment with the defendant counsel’s written address.
In my humble view, the art of judgment writing is peculiar to each Judge. Nevertheless the judgment of the court must consist of a clear consideration and resolution of the issues that arose for decision and it must end up with a clear verdict which flows logically from the facts as found. See Ezeoke vs. Nwogbo (1988) 1 NWLR 616; and Aguocha vs. Aguocha (2004) 43 WRN 17. Furthermore, in the case of Rocks Bottom Interior Ltd. vs. Gafar (2005) All FWLR (Pt. 271) 113, 137 cited by the learned appellants’ counsel, the essentials of good judgment were stated to be:
1. The setting out of the nature of the action before the court, the issues in controversy, a review of the case for the parties, a consideration of the relevant law raised and applicable to the case, specific findings of the facts and conclusion.
2. The stating of the reasons for arriving at the conclusion.
In looking at the Written Address of the Plaintiffs’ Counsel as well as the Plaintiffs’ Counsel Reply to the Written Address of the Defendant’s Counsel which are on pages 26-31 and 32-36 respectively of the Record, it is obvious that the trial judge started his judgment by setting out the claims, he then went on to consider the issues as raised by the defendant and submissions thereon and then on to the issues raised by the plaintiffs’ as well as counsel’s submissions thereon.
I would not say that the learned trial Judge relied solely on the defendant counsel’s written address in writing his judgment. Rather, much as he touched on the address of either counsel, the learned trial Judge took shallow and sketchy cognizance of the pleadings and evidence of the parties before him. Thus he failed to give an in depth consideration of the evidence led by both sides. To my mind the evidence of parties as opposed to counsel’s address is the fulcrum upon which the judgment gravitates or takes its hold. The evidence of the parties should therefore not play a second fiddle in any judgment lest the Judge be left with little or nothing to put on the imaginary scale of justice. My reaction to issue (2) as raised for determination is that the learned trial Judge considered the address of both counsel as opposed to relying solely on the Written Address of the learned counsel of the defendant in preference to pleadings and evidence before him. To toe that course of action in any judgment would undoubtedly bring about a miscarriage of justice. However, the trial court failed to give adequate consideration of the pleadings and the evidence of the witnesses before arriving at its conclusion thereby placing its judgment on a shaky pedestal. This issue is accordingly resolved against the appellants.
ISSUE 3
Whether the learned trial Judge was correct to place much reliance on Exhibits A and B in preference to the evidence before the court.
Exhibit A was tendered through the PW1 while Exhibit B was tendered through the DW2. In his submissions with regards to Exhibit A, the learned counsel for the respondent stated that the land in Exhibit A is different from the land herein in dispute. The parties and subject matter in the said Exhibit A are different. He referred to the cross examination of the PW1 as contained on page 22 (sic it should read page 14l of the record wherein the PW1 stated thus:
The land in Exhibit A is different from the land in dispute. I did not sue the present defendant over any matter before.’
Counsel went on to state that Exhibit A goes to no issue as it has no bearing or relevance to this case and that the learned trial Judge was right in not ascribing any probative value to it. He recapped that a person claiming a declaration of title to any piece of land must prove his entitlement to the grant by preponderance of evidence. He cannot even rely on the weakness of the defendant’s case or admission by the defendant in his or her pleading. In support of this principle learned counsel cited the authority of Reynolds Construction Co. Nig. Ltd v. Okwejimi (2002) FWLR (Pt.121) 193; and Ogbe v. Asabe (2005) All FWLR (Pt.285) 620. Counsel concluded this issue of Exhibit A by saying that the plaintiffs/appellants have not proved that the land in dispute and the land in Exhibit A are one and the same and as such the learned trial Judge was right to hold that the doctrine of similar fact evidence is not applicable.
Now from the submissions of the learned counsel for the appellants I have not seen any statement suggestive of the fact that they have made any issue out of Exhibit A. In fact the appellants’ counsel brought to the fore the fact that the DW1 had previously sold part of the land partitioned to Osunjinmi that is the PW1’s section of Gbagboye family and which was the issue covered by Exhibit A. Counsel for the appellants agreed with the learned trial court’s holding in its judgment that Exhibit A relates to a different subject matter and different parties and that the plaintiffs before it were seeking to use the said exhibit as a similar fact evidence and not to prove the particular case before the said trial court. I am of the view that the issue of Exhibit A as raised by the learned counsel for respondent is unfounded more so as the appellants are not challenging the findings of the trial court thereon.
Regarding whether the learned trial Judge was correct to place much reliance on Exhibit B– as already noted, the said Exhibit B was tendered in evidence through the DW2 and as contained on pages 18-19 of the record. Exhibit B was tendered as a report of the investigation by Akire-in-Council based on a complaint brought before it by one Sikiru Alabi Akinropo (the 2nd plaintiff/appellant). Lateef Ajao Awoleke the DW2 is or was one of the High Chiefs in the Akire-in-Council and he admitted under cross examination that the Akire-in-Council is not a court. It is pertinent to note here that Exhibit B has nothing in it to suggest that Sikiru Alabi Akinropo as the complainant therein was acting on behalf of the Akinropo branch of the Gbagboye family when he sued Samuratu Ojewunmi Fadele before the Akire-in-Council. Given that Sikiru Alabi Akinropo was before the Akire-in-Council on his own accord, the appellants herein being the representatives of the Akinropo family cannot be heard to have subjected themselves to that customary arbitration as is argued by the learned counsel for the respondent. This is to say that the outcome of that customary arbitration covered by Exhibit B was binding on Sikiru Alabi Akinropo to the exclusion of the instant appellants. In effect our finding is that the parties in Exhibit B are different from the parties in the instant appeal likewise the subject matter.
The learned counsel for the respondent in his written submission had argued that Exhibit B was tendered and there was no objection to its admissibility by the appellants’ counsel and as such it was rightly admitted and that therefore the learned trial court was duty bound to rely on it by evaluating all evidence before it. He referred to section 7 of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 to show that relevance governs admissibility.
I am not in doubt that relevance governs admissibility. Be that as it may, admissibility of a document pursuant to section 7 supra is to my mind a different issue from the weight attachable to it. Thus a document admitted in evidence could be discountenanced pursuant to section 1 (a) of the Evidence Act 2011 (or section 6 (a) of the 1990 Evidence Act supra) if the court at the end of the day finds it to be immaterial and or rather unconnected or remotely connected to the case before it.Therefore that Exhibit B was admitted in evidence without objection by the appellants’ counsel would not add or subtract from the weight attachable to it by the court. With the findings of this court that Exhibit B is an investigative report by the Akire-in- Council which of course is not a court and that the parties before it are not the same as the parties in the instant appeal and that the subject matter therein is different from the subject matter herein, the said Exhibit B is devoid of any probative value. Consequently the trial court ought not to have attached weight to it in arriving at its judgment.
In summation of all that I have said above, my holding is that flowing from the pleadings, the evidence of the parties at the trial and the applicable laws, the learned trial Judge failed to do an in depth and proper evaluation of those materials before him. Though he was free to adopt his own style of judgment writing he failed to properly consider the credible evidence of the parties and ascribe probative value to them. He attached undue weight to Exhibit B. From the evidence before the court the appellants adequately discharged the burden of proof on them. Accordingly the decision cannot be allowed to stand.
Notwithstanding the resolution of issue (2) against the appellants, the appeal is meritorious and is hereby allowed. The judgment of the High Court of Osun State sitting at Ikire in suit No. HRE/9/2007 delivered on the 3rd of March, 2009 is hereby set aside. Judgment is thus entered in favour of the plaintiffs as per their writ of summons and statement of claim. Costs are assessed at N50,000.00 in favour of the appellants.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother, JOMBO-OFO, JCA just delivered. I agree with the reasoning and conclusion reached therein.
The undisputed evidence before the court below was that the original large expanse of land settled upon by Gbagboye, the appellants’ ancestor was upon his death partitioned among his three children begotten to him by his three wives, constituting the Okoro, Ojewunmi and Osunjinmi branches of the family. It was also not in dispute that that the appellants are the descendants of Akinropo, one of the children of Okoro and therefore belong to the Okoro branch of the family. The respondent’s vendor, Samuratu Ojewunmi Fadele (DW1) belongs to the Ojewunmi branch.
It has been held that,
“The effect of partitioning family land is that the property that had hitherto belonged to the family is split up into ownership of the constituent members of the family. It puts an end to the communal ownership. When the division is among constituent branches of the family, a new family ownership is created in as many places as the property is divided, each branch becoming the owner of the portion partitioned to it.”
(Emphasis mine)
See: Yesufu vs Adama (2010) 5 NWLR (1188) 522 @ 542 A – B; Oyadiji v. Olaniyi (2005) 5 NWLR (919) 561 @ 575 C – E; Bello (Selia) Vs Udoye (2004) 19 WRN 58 @ 85; Olorunfemi & Ors. Vs Asho (2000) 2 NWLR (643) 143.
The appellants who had the burden of proving their title to the land in dispute having established by credible evidence, uncontroverted by the respondent, that the land in dispute was specifically partitioned to their branch of the Gbagboye family, the onus shifted to the respondent to prove how his vendor, Samuratu Ojewunmi Fadele, who belonged to a different branch of the family, acquired any rights over the land in dispute. Having failed to discharge this burden, the appellants were entitled to succeed in their claims.
I agree with my learned brother, Jombo-Ofo, JCA that the learned trial Judge failed to properly evaluate the evidence before him and ascribe probative value thereto. Where the credibility of the witnesses who testified at the trial is not in issue, as in this case, this court is in as good a position as the trial court to evaluate the evidence and make finding thereon. See: Fagbenro v. Arobadi & Ors. (2006) 7 NWLR (1978) 172; Ebba v. Ogodo (1984) 1 SCNLR 372.
For these and the more detailed reasons contained in the lead judgment, I agree that there is merit in this appeal and it ought to be allowed. I accordingly allow it and abide by the consequential orders contained in the lead judgment including the order for costs.
ALI ABUBAKAR B. GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother C. I. Jombo-Ofo, J.C.A., I agree with all the reasonings and conclusions of His Lordship. I adopt them as mine in allowing this appeal.
I abide by all the consequential orders of His Lordship including the order for costs.
Appearances
Kayode Alli-Balogun Esq.For Appellant
AND
S. A. Oyesomi Esq. with Tosin BabatundeFor Respondent
