EZEKIEL DADA & ANOR v. MR. ISIJOLA ADEDIPE
(2018)LCN/12341(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of December, 2018
CA/EK/15/2018
RATIO
COURT AND PROCEDURE: WHETHER THE APPELLATE COURT CAN INTERFERE WITH THE FINDIGS OF THE TRIAL COURT
‘”It is now a settled law that, a Court of appeal which did not hear or observe the demeanor of witnesses in the witness box should be reluctant to interfere with findings of facts of a trial Court which had the advantage of seeing and hearing the witness box unless such findings were perverse. See Anuonye Wachukwu & Anor. V. Amadike Owunwanne(2011) 25 WRN 1(ii) Asanya v. The State (1991) 3 NWLR (pt. 180) 422 (iii) Popoola v. Adeyemo (1992) 8 NWLR (pt.257) 1 (iv) Bamgbade v. Balogun (1994) NWLR (pt.323)718.” PER PAUL OBI ELECHI, J.C.A.
COURT AND PROCEDURE: LOCUS STANDI
“Locus Standi denotes the legal capacity to institute proceedings in Court. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the Court. Consequently if the plaintiff does not have locus standi to institute the suit, the Court would have no jurisdiction to entertain the suit. Usually it is the plaintiff that is questioned as to whether he has locus standi. See Nurses Association v. A.G. (1981) 11-12 SC 1, Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669, Pacers Multi-Dynamic Ltd. v. MVD Dancing Sisters & Anor (2012) 1 SC (pt. 1) 75. See also Babayeju v. Chief Ashamu (1998) 9 NWLR (pt. 567) 546. In the case of Yekinni Adedokun Oyadare v. Chief Olajide Keji (2005) NGSC 11, the Court affirmed that a party can bring an action for trespass without necessarily proving that he is the exclusive owner of the land in dispute. As long as someone other than the owner has caused the disturbance, trespass has been committed. The Court specifically held that.” PER PAUL OBI ELECHI, J.C.A.
DAMAGES: GENERAL DAMAGES
“General damages is often presumed and awarded by the Court. However a plaintiff can only be obliged with the discretionary powers of the Court if from the evidence adduced by him, the relief is actually proved. In other words, without the proof of the relief, the Court is beset of the discretionary power to presume thatgeneral damages accrued and award same. See GTB v. Abiodun (2017) LPELR -42551 (CA).” PER PAUL OBI ELECHI, J.C.A.
EVIDENCE: BURDEN OF PROOF
“The law is well settled that a party must first prove his case with credible evidence before the burden placed on him by law can shift to his opponent. See (i) Elias v. Disu (1962) 1 ALL NLR 214 (ii) Iheanacho v. Chigere (2004) 17 NWLR (pt.901).” PER PAUL OBI ELECHI, J.C.A.
LAND LAW: WHETHER TO PROVE CUSTOMARY TITLE REQUIRES DOCUMENTARY EVIDENCE
“Therefore, I hold the view that the customary grant to the three beneficiaries is valid and lawfully granted. The Court in the case of Obasohan v. Omorodion (2001) FWLR (pt.67) 992 affirmed that provisions of the Conveyance Law, does not regulate customary transactions to land. The requirement of documentary evidence to prove any transaction in land is merely and only applicable to lands in urban areas covered with statutory Right of Occupancy. By Section 1(2) of the Conveyance Law provides that transactions on lands in non-urban areas does not require documentary evidence to prove same.” PER PAUL OBI ELECHI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. EZEKIEL DADA
(for himself and on behalf of members of Ajagemo Family of Ilamoye quarters, Igede Ekiti)
2. HRM OBA ADELUSI JAMES ALADESURU II
(The Onigede of Igede-Ekiti) Appellant(s)
AND
MR. ISIJOLA ADEDIPE
(The Elerebi of Odogun family of Igede Ekiti)
(for and on behalf of members of the Odogun family of Igede Ekiti) Respondent(s)
PAUL OBI ELECHI, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of the lower Court delivered on the 29th September 2017 in this suit in favour of the Respondents.
Being dissatisfied with the judgment of the lower Court, the Appellants filed a notice of appeal containing ten grounds of appeal.
The Respondents as claimants at the lower Court claims against the Appellants as follows:
(A) A declaration that the claimant is entitled to the right of occupancy of the piece of land lying, being and situate at Odogun family land in Odo-Igede Street, Igede Ekiti which land has the following boundaries.
i. In the East, sharing boundary with Ejelu Ijisun
ii. In West, it is bounded by Isao, Uro Odofin,Osolo families land.
iii. In the North it shares boundary with theOnigede family land.
iv. In the South it shares boundary with the Asaadeand Ejigbo family land.
(B) A declaration that the Defendants have no land in the Odogun community land in Igede Ekiti.
(C) An Order for the payment of the sum of Five Million Naira ascompensation for the general damages caused the claimant by the defendant.
(D) An order of perpetual injunction restraining the Defendants whether by himself (sic) their agents, assigns, servants and privies, subject and or anybody whosoever or howsoever from interfering with, and erecting any structure being on any portion of land on the Odogun community land in Igede Ekiti.
In response, the Appellants (as the defendants in the lower Court) filed a 31 paragraphs ? Statement of Defence and Counter-claim dated 2nd March, 2016 and filed same date.
The Appellants Counterclaim against the Respondent as Follows:
a) A declaration that the 1st defendant family (Ajagemo family) being the customary owners of both the farmland and the residential land on which the Odogun family members are presently occupying, is the one entitled to statutory Right of Occupancy in respect of same.
b) A declaration that the large expanse of farmland bounded in the East by Ejelu and Ijisun family land, in the West by Asao and Odofin family land, in the North by Onigede family land and in the South by Saade and Ejigbo Family land belong absolutely to the Ajagemo family.
c) A declaration that the Odogun family are mere licensee on Ajagemo family land.
d) An order of Court revoking the license of the Odogun family in respect of both the farmland and residential land on which they areoccupying for challenging the authority of their overlord, the Ajagemo.
e) An order of the Court ordering the Odogun family members to vacate the land originally belonging to the Ajagemo family for challenging their overlord’s authority or in the alternative to henceforth pay annual tribute (Isakole) N5,000,000 (Five Million Naira) in respect of same.
f) An order of perpetual Injunction restraining the claimant and his family from laying further claim of ownership to the land of Ajagemo of which they are mere licensee.
BRIEF FACTS OF THE CASE
a) The land in dispute which is specifically described the Odogun land is in Odo Igede quarters Igede Ekiti.
b) The Odogun family land the subject matter of this suit was originally acquired by way of settlement during the reign of Odogun Odubaba Alejo who migrated from Ado-Ekiti and settled on the land.
c) The land on the Southwest side of the Atiba land on the Odogun family land in Odo-Igede thereafter devoted on each succeeding Odogun from generation.
d) Odogun family retains ownership right over the land on Odogun land in Odo Igede and has exercised such powers and right to allocate any part of it to whomsoever he pleases.
e) The Respondent allocated theland upon which the St. John’s Anglican Church Igede Ekiti is sited as far back as 1935 and also part of the land upon which Ekiti Baptist Boys High School Igede Ekiti is located in 1956.
f) From time immemorial, the occupation of the land by the Odogun family has been without let or hindrance from anybody or any quarters.
g) In very recent years, during the reign of Odogun Fatoye, the Head Chief of the Odogun family, leased a portion of the land known as Eriko farmland to the mother of the 1st Appellant based on her request not to die of starvation and for sustenance, to which she paid tributes in accordance with Native Law and Custom.
h) The persons occupying such portion allocated to them at any such given time paid tributes to the Odogun family among whom was Madam Lydia Dada mother of the first Appellant.
i) In exercise of the Respondent’s family’s right to allocate any part of their land, one Aluko, from Ijeda Iloko Ijesha a businessman, was permitted and granted a lease to settle on the portion of the Odogun land. A house built on the land has been encroached upon by the Appellants for Chietaincypurpose.
Consequently, the Aluko from Ijeda Iloko Ijesha abandoned the structure and later gave some possessory rights to one Chief Fakunle Omosio who later transferred the rights to his Son-in-Law late Rev. Olaolorun whose successor – in-title is the Cw6. The 1st Appellant was pleading and entreating Cw6 to receive the sum of N500,000.00 for the building in question for Chieftaincy purposes.
The Respondent had quiet enjoyment and undisturbed possession of the land in dispute but the Onigede and Ezekiel Dada began to disturb the Respondent and the descendants of the Olaolorun to have the building used for Ajagemo Chieftaincy.
The 1st Appellant brought in thugs to commit various acts of trespass on the building on the Odogun family land with the connivance of the 2nd Appellant in this suit.
The various acts of trespass had prevented the Respondent from peaceful possession of their land; consequently the suit was filed on 22nd January, 2016 at the lower Court.
Judgment was delivered on 29th day of September 2017 in favour of the Respondent. On 1st November 2017, being dissatisfied with the Judgment of the lower Court, the Appellants filed a notice of Appeal containing ten grounds of appeal.
ISSUE I
Whether on evidence on record, did the Respondent (who is the claimant at the lower Court) proof act of ownership and possession through any grant to a church, school and an individual in person of Aluko Ijeda to warrant the grant of declaration of title to the land in dispute in favour as done by the Court below (grounds (iii) (iv) and (v) of the grounds of Appeal.?
ISSUE II
Is there any evidence of trespass to any land either owned by the Respondent or in possession of the Respondent to warrant an award of N200,000 (Two Hundred thousand Naira) as general damages in his favour (Grounds VI of the grounds of Appeal.?
ISSUE (III)
Did the lower Court assess the evidence put forward by the Appellants before ascribing the relationship of land lord/customary tenant to the parties before it contrary to the claim of the Appellants whose claim is predicated on licensor/licensee relationship? (grounds vii, viii and x of the grounds of Appeal.
ISSUE IV
Is there before the Court, aclaim by the Respondent that ownership of the land in dispute devolved on him as a king maker warranting the Court to award declaration of title to the land in dispute in favour of the Respondent based on the status of Odogun as king maker? (Grounds ix of the grounds of Appeal)
ARGUMENT
ISSUE 1
Whether on the evidence on record, did the Respondent (who is claimant at the lower Court), proof act of ownership and possession through any grant to a church, school and an individual in person of Aluko Ijeda to warrant the grant of declaration of title to the land in dispute in his favour as done by the Court below? (Grounds (iii) (iv) and (v) of the grounds of appeal).
In his own wisdom, Appellant decided that this issue shall be treated under two heads, namely;
i. Whether there is evidence of a grant of land to St.John’s Anglican Church and Ekiti Baptist Boys HighSchool?
ii. Whether there is evidence of a lease to Aluko Ijeda?
To argue this issue, it is contended that the decision of this issue is germane to this appeal. This is because the lower Court held that the evidence oftraditional history of ownership relied upon by the Respondent (as the Claimant in the Court below) failed. Therefore, the award of declaration of title made by the lower Court in his favour was held to be based on the exercise of alleged acts of ownership by making grants to a church, school and an individual.
If this Court finds that there is no proof of ownership by any grant to a church, school or an individual, then the judgment of the lower Court is to be set aside. Then the determination of this issue in favour of the Appellant may not allow the Court venture into other issues which would have become an academic exercise.
It is now a settled law that, a Court of appeal which did not hear or observe the demeanor of witnesses in the witness box should be reluctant to interfere with findings of facts of a trial Court which had the advantage of seeing and hearing the witness box unless such findings were perverse. See Anuonye Wachukwu & Anor. V. Amadike Owunwanne(2011) 25 WRN 1(ii) Asanya v. The State (1991) 3 NWLR (pt. 180) 422 (iii) Popoola v. Adeyemo (1992) 8 NWLR (pt.257) 1 (iv) Bamgbade v. Balogun (1994) NWLR (pt.323)718.
In the instant case, it is admitted that the evidence on record do not support the findings of the lower Court that the Respondent proved a grant to a church, school and an individual. In civil cases, the Court decides on the preponderance of evidence and balance of probabilities which must have basis in law. See Elias v. Omo-Bare (1982) 5 SC 25. and Woluchem v. Gudi (2004) 3 WRN 20. The Court of Appeal has the right to interfere where the evidence on record are patently incredible and have no basis in law to warrant the verdict of the lower Court.
The Respondent whose written Statement on Oath accompanied the Statement of Claim never mentioned any grant of land to St. John Anglican Church and Ekiti Baptist Boys High School.
The Respondent who is the CW2 and whose evidence in chief is as contained in his written Statement on Oath at pages 8 to 10 of the Records of Appeal did not give any evidence of any grant of land to either St. John Anglican Church or Ekiti Baptist Boys High School.
It is only in paragraph 13 of Reply to defendants Statement of defence and counter claim (pages 39 to 41 of the Records of Appeal) that thereis an averment as follows: ‘Odogun family undisputedly gave land out to St. John Anglican Church Igede Ekiti and Ekiti Baptist Boys High School.’
Two written Statements on Oath were filed alongside the Reply to Statement of Defence and Counter claim. It is only one of the written Statements on Oath, which is that CW1, contained evidence in support of a grant of land to St. John Anglican Church and Ekiti Baptist Boys High School, the other written statement on oath made no mention of any grant to St. John Anglican Church or Ekiti Baptist Boys High School. An averment alone without cogent evidence cannot establish a grant of land?
In terms of grant of land by the Respondent family to St. John Anglican Church and Ekiti Baptist Boys High School as per the statement of claim dated 22nd January 2016, there is no single averment that the Respondent family made a grant of land to St. John Anglican Church and Ekiti Baptist Boys High School. Even CW1 who alleged that Odogun family gave land to St. John Anglican Church and Ekiti Baptist Boys High School did not show any documents evidencing the grants. The law is clear that he who asserts must provewith cogent and credible evidence otherwise he will not succeed. See Imana v. Robinson (1979) 3-4 SC 1, Archibong v. Ita (2004) 13.
The law is well settled that a party must first prove his case with credible evidence before the burden placed on him by law can shift to his opponent. See (i) Elias v. Disu (1962) 1 ALL NLR 214 (ii) Iheanacho v. Chigere (2004) 17 NWLR (pt.901).
The ipxe dixit claim of CW1 that part of the land on which St. John Anglican Church and Ekiti Baptist Boys High School were situate was given to them by Odogun family without any cogent proof of such grant be the basis to ascribe ownership of the land in dispute to the Respondent. The lower Court appears to know that this evidence is not sufficient, that was why the Court found solace in making references to the evidences of DW1 and DW3 as supporting the case of the Respondent.
The oral evidence of CW2 as to the grant of land to St. John Anglican Church and Ekiti Baptist Boys High School was contradicted by DW1 and DW3 who claimed that the land was not given out as that of Odogun family but because the owners were not around when Odogun family gave it out.
Did the evidence of DW1 and DW3 constitute admission of a grant of land to Ekiti Baptist Boys High School. A close look at the evidences relied on by the lower Court shows what DW1 the Oba and paramount Ruler of Igede Ekiti under cross examination at page 176 of the Records of Appeal stated as follows:
“When the Odogun family came to Igede, there was no land that was vacant and he was asked to stay with an existing chief Odogun family gave out part of the land occupied by Ekiti Baptist Boys High School, the land was given out by the Odogun because the original owner who was Ajagemo was not available. The Ajagemo had long since died hence it was the Odogun who gave out the land to Ekiti Baptist Boys High School.”
Can this statement by any stretch of language be taken to mean that Odogun family owns the land as wrongly held by the lower Court?
Another statement relied on by the Court to hold there was grant to Ekiti Boys High School was that of DW2 which was contained in page 180 of the records of Appeal as follows;
‘It may be possible that the family gave out part of our land being occupiedby Ekiti Baptist Boys High School. This is because there was nobody there and only tenants were on the land’.
This was taking as the admission of ownership of the land by Odogun by the lower Court.
Learned Appellant counsel contended that the lower Court rather than base its verdict on the evidence before it engaged in speculations as to what should be and not out to be. If the paramount ruler of Igede Ekiti who is DW1 testified that the land was given out by Odogunbecause the original owner who was Ajagemo was not available and this piece of evidence was not challenged or controverted. It is submitted that there is no proof of any grant of land to Ekiti Baptist Boys High School. The verdict that ownership was proved as a result of grants to St. John Anglican Church and Ekiti Baptist Boys High School is perverseand should be reversed.
On the evidence of a lease to Aluko Ijeda, the Appellants challenged the allegation of a lease been granted to Aluko Ijeda during trial and in his Address. The Court did not make any findings on this issue ofnon-existence of a lease rather, it held there is a grant to Aluko Ijeda.
The Appellants had during cross examination elicited from the Respondent who is CW2 that there was no valid lease to Aluko Ijeda. see page 72 where the Respondent as CW2 stated as follows;
The land was leased to Aluko to build a house. There is no document evidencing the lease. I do not know the number of years… we do not specify the number of years the lease is to be for.
The Appellants in their written address at page 187 of the Records of Appeal had addressed the Court below on non-existence of a lease between the Respondent and Aluko Ijeda. However, the trial Court did not make any finding on the issue, but held that there was a grant to Aluko Ijeda. Can it be said that the lower Court put the evidence of both parties on the issue of a lease to Aluko Ijeda on an imaginary scale in this case? Certainly no, and there was no finding on whether there was a valid lease to Aluko Ijeda.
Can there be a valid lease without evidence of commencement and expiration of same? No rent or consideration for the lease. The term of the alleged lease was not placed before the Court. Even if it is a parole or oral lease, the elements were all missing in the instant case.
The tenure of Aluko Ijeda had been for many years above the 3 years for parole lease there was no rent for the lease notwithstanding the case of Okoye v. Nwulu (2001) 11 NWLR (pt. 724) 362 at 367 and Odutola v. Papersack Nig. Ltd. (2007) ALL FWLR (PT. 300) 1214 cited by the Appellants to show that there was no evidence of a leasehold between the Respondent’s family and Aluko Ijeda, the Court below glossed over the issue.
According to learned Appellant counsel, the Appellants made it clear in their written submission contained in page 187 of the Records of Appeal that there was no valid lease be it oral or written between the Respondent and Aluko Ijeda. A party alleging an oral agreement or a parole lease is duty bound to prove such an agreement to the hilt, this being the decision of Ekpanya v. Akpan (1989) 2 NWLR (pt. 101) 90 which case was brought to the attention of the lower Court.
On a final note, it is submitted that there is evidence on record to support the holding that the Respondent had proved ownership through grants to St. John Anglican Church, Ekiti Baptist Boys High School and a lease to Aluko Ijeda.
He then urged the Court to resolve this issue in their favour.
ISSUE II
Is there any evidence of trespass to any land either owned by the Respondent or in possession of the Respondent to warrant an award of N200,000 (Two Hundred Thousand Naira) as general damages in his favour? (Ground vi of the Grounds of Appeal).
Under this issue, it is contended that the judgment of the lower Court is based on Exhibit 1 which is a letter written by the Respondent to the police alleging the presence of the 1st Appellant on a land which both parties agreed that it is under the control and management of one Rev. Olaolorun, who is not a party to the case between them. The land in question was pleaded in paragraphs 10? 15 of the Respondents Statement of claim contained in page 5 of the Record of Appeal.
At the trial the son of Rev. Olaolorun who testified as CW6 gave evidence as follows; The land in dispute belongs to my father the land in dispute is on Odogun’s land, I have not delegated Odogun familyto litigate on my behalf in respect of the property.
At page 187 of the Record of Appeal, the Appellants in their written address made it clear that as regards the land, the Respondent herein is a busybody, a meddlesome interloper in what does not concern him. The successor in title of Rev. Olaolorun stated in the open Court that he did not delegate power to litigate on the land to the Respondent; despite this lack of locus standi the lower Court awarded damages in trespass against the 1st Appellant.
It is therefore submitted that the Respondent who had not established any leasehold of the land to Aluko Ijeda and his predecessors in title cannot maintain an action in trespass against the 1st Appellant. He urged the Court to set aside the award of Two Hundred Thousand Naira. (N200,000.00) as general damages made by the lower Court.
The Court is urged to resolve this issue in favour of the Appellant.
ISSUE III
Did the lower Court assess the evidence put forward by the Appellants before ascribing the relationship of landlord/customary tenant to the parties before it contrary to the claim of the Appellants whose claim is predicated on licensor/licensee relationship (Ground VII, VIII and X of the grounds of Appeal).
Parties claim are predicated on their pleadings. The Appellants Amended Statement of Defence and counter-claim is at pages 149 to 153 of the Records of Appeal. Particularly claims (c) and (d) of the counter-claim contained in pages 153 of the Records of Appeal.
The evidence of all Defence witnesses is to the fact that the Odogun family is mere licensee on Ajagemo Land. The 1st Appellant never talked about payment of rent by the predecessors in title of the Respondent but asked that since the present crop of Odoguns challenged the Ajagemo Authority, their license should be revoked while they henceforth pay tribute.
To show that from time immemorial the land belonged to Ajagemo, the Appellant tendered the history book of Igede Ekiti which was admitted in evidence as Exhibit 3, the lower Court that admitted the treatise in evidence, later made a detour that it will only act on the English translation of the book. However, with or without placing reliance on Exhibit 3, the Traditional Ruler of Igede Ekiti (CW1) and the second in command to theOba, (CW2) who happens to be the quarter head of where the land in dispute is situate gave unchallenged evidence that the Odoguns are mere licensee on Ajagemo land.
It is further contended that from the pleadings and available evidence on record. The Appellants claim was for forfeiture of their license for challenging the authority of the licensor. Therefore the issue of landlord/customary tenant alluded by the lower Court is a misconception of the issues between the parties.
The lower Court made specific finding on the claim of ownership through traditional history put forward by the Respondent. The Court held that the Respondent failed to adduce evidence in support of this. However, the Court did not make any findings as to the claim of the 1st Appellant that pleaded that the Respondent’s forebears met his predecessors-in-title the land. The 1st Appellant in his pleadings, and evidence in chief mentioned his forebears who had been in physical possession and exercised ownership over the land before the arrival of the Respondent’s predecessor-in-title ‘Odubaba Alejo’.
He reiterated that the1st Appellant’s three (3) witnesses made it clear that the predecessor in title of the Respondent met the predecessor in title of the 1st Appellant on the land in dispute. The lower Court made no specific finding on whether it believed or disbelieved this evidence of the Appellants, rather, the lower Court went into speculations as to what ought and ought not to have been done by the erstwhile holders of the positions of DW1 and DW2.
It is his submission that the failure of the Court to make specific finding on whether the predecessor in title of the Respondent met the predecessor in title of the 1st Appellant on the land is a great omission which has led to a miscarriage of justice.
If the lower Court had found for the 1st Appellant as the person whose forebear first settled on the land in dispute no doubt the judgment of the lower Court would have been different. The error of ignoring the claim of earlier settlement on the land has misled the lower Court to give a wrong verdict. The Court is urged to set aside the judgment of the lower Court based on its failure to make a finding on the claim of the Appellant to the effect that the 1st Appellant’s forebear first settled on the land in dispute.
He then urged the Court to resolve this issue in their favour.
ISSUE IV
Is there before the Court, a claim by the Respondent that ownership of the land in dispute devolved in him as a king maker, warranting the Court to award declaration of title to the land in dispute in favour of the Respondent based on the staus of Odogun as a king maker? (Ground IX of the grounds of Appeal).
To argue this issue, learned counsel referred the Court to page 272 of the records concerning the judgment of the lower Court. He contended that both in his pleadings and his evidence, the Respondent never claimed that the land in dispute devolved on his family as a result of being Odogun chieftaincy title holder.
The DW1 who is the Oba and paramount Ruler of Igede Ekiti saidthere was no land that was vacant and he was asked to stay with an existing chief? see page 176 of the Records of Appeal.
Therefore the verdict of the Court that as a kingmaker the Respondent family must definitely have some parcel of land conceded to it is an assumption and supposition gone into by the Court contrary to the evidence before it. It is not within its province.
In view of the error on the part of the lower Court in ignoring the claim of earlier settlement on the land, learned counsel urged the Court to set aside the judgment of the lower Court for failure to make a finding on the claim of the Appellant to the effect that the 1st Appellant?s forebear first settled on the land in dispute.
Since the lower Court did not evaluate the evidence of the Appellants or the issue of the 1st Appellant predecessor in title being the first settler on the land which claim is supported by both pleadings and copious evidence, the appellate Court has a duty to find for the Appellants as per their claims in the counterclaim and set aside the judgment of the lower Court.
The Court is urged to resolve this issue in their favour and finally to allow the appeal.
ISSUES FOR DETERMINATION
The Respondent formulated four issues for determination.
1. Whether on the preponderance of evidence on record, did the Respondent proof acts of ownership and possession through any grant to a Church, School and individualin person of Aluko Ijeda to warrant the grant of declaration of title to the land in dispute in his favour.
2. Whether there is any evidence of trespass to any land either owned by the Respondent, or in possession of the Respondent, to warrant an award of N200,000 (two hundred Thousand Naira) as general damages in his favour.
3. Did the Court assess the evidence put forward by the Appellants before ascribing the relationship of landlord/customary tenant to the parties before it contrary to the claim of the Appellants whose claim is predicated on licensor/licensee relationship.
4. Whether there is a claim by the Respondent that the ownership of the land in dispute devolved on him as a king maker, warranting the Court to award declaration of title to the land in dispute on the status of Odogun as kingmaker.
Issue 1 above, it is submitted that the written statement on oath of CW2 shows that it contains evidence in support of a grant of land by the Respondent to both St. John Anglican Church and Ekiti Baptist Boys High School; and that the lower Court properly evaluated the evidence of CW2. See Alhaji Illiyasu Umar v. BayeroUniversity Kano (1988) 4 NWLR (pt.86) 85 at 92.
On evaluation and finding of the lower Court, it is submitted that the lower Court rightly made findings establishing the Respondent’s case of proof of owning the land by various acts of ownership and possession.
The Respondent had indicated to his pleadings on pages 9 and 42 of the records, various acts of ownership and possession including farming and releasing to the Mother of the 1st defendant for farming, giving of the land to people for building of Church especially St. John Anglican Church in 1935 and the part of the land upon which the Ekiti Baptist High School is sited on since 1956.
Even the Respondent, who is alleging that the evidence on record does not support pleadings, did not deny these various acts of ownership and possession as can be derived from them under cross examination.
The findings and evaluation of evidence of the trial Court on the issue of proof of acts of ownership by the Respondent can be found on pages 267 – 270 of the record where the learned trial judge painstakingly plead the case of the parties and evidence of witnesses on animaginary scale. It is submitted that the Appellants failed woefully in disproving or controverting the pieces of evidence of ownership and possession by the Respondent.
By way of admission, the Defendants have aided the case of the Claimants as to long possession and various acts of possession on the land and urged the Court to so hold in favour of the Respondents that the issue of Acts of Ownership had been sufficiently proven.
On the contention by the Appellant that there was no valid lease between the Respondents family and one Aluko Ijeda and that the lower Court did not make any finding on the issue of valid lease, learned counsel referred to Section 143 of the Evidence Act 2011, Adegbite v. Ogunfaolu (1990) 4NWLR (pt. 146) 578.
It is submitted that there is no evidence adduced by the Appellants throughout the proof of their case at the Lower Court which is sufficient evidence to disprove presumption of ownership in favour of Respondents of the land in dispute if any. What is more, possession is the incidence of Acts of ownership over a period of over eighty years without let or hindrance of any kind.
The Appellants havemade a heavy weather on this wrong contention and submission that there was no valid lease between the Respondent and Ekiti Baptist Boys High School Igede Ekiti, St. Johns Anglican Church Igede ? Ekiti and one Aluko Ijeda. The Appellants interestingly referred to paragraph 13 of Reply to Defendants statement of Defence and counter claim (pages 39 to 41 of the Records of Appeal) that there is an averment as follows:
?Odogun family undisputedly gave land out to St. Johns Anglican Church Igede Ekiti and Ekiti Baptist Boys High School. The Appellants further admitted in paragraph 3.06 of their Appellants? Brief of Argument that CW1?s written statement on Oath contained evidence in support of a grant of land to St. John Anglican Church and Ekiti Baptist Boys High School, Igede Ekiti.
The Appellants in paragraph 3.07 contended that CW1 who alleged that Odogun Family undisputedly gave land out ‘did not show any documents evidencing the grants.’
But under customary land tenure system, documentary evidence is unknown to native law and custom, see Momodu Olubodun & Ors. V. Oba Adeyemi Lawal &Anor (2008) ALL FWLR (pt. 438) 1468.
It follows therefore that where land is granted or acquired according to native law and custom, a written agreement or conveyance is not a sine qua non once there is delivery of possession. This was the decision of the Court in ADIKE v. OBIARERI 4 NWLR (Pt. 758) 537.
It is therefore an erroneous interpretation of law on the part of the Appellants to submit that since there was no documentary evidence in support of the customary grant of parcels of land by the Respondent to Ekiti Baptist Boys High School, St. John Anglican Church and One Aluko Ijeda, there was no valid grant.
It is further submitted that the customary grant of parcels of land to the three grantees by the Respondent which same was supported by uncontroverted, oral evidence at the trial is a valid and lawful grant under customary law and it does not require documentary evidence to prove same. In fact, the Court in OBASOHAN v. OMORODION (2001) FWLR (PT. 67) 992.
Property and conveyance Law; does not regulate customary transactions to land. It flows therefore that where land is granted or acquired according to native law and custom, a written agreement or conveyance is not a sine qua non once there is delivery of possession. This was the decision of the Court in ADIKE v. OBIARERI (2002) 4 NWLR (pt. 2002) 4 NWLR (pt. 758) 537.
The Court is urged to resolve this issue in favour of the Respondent.
ISSUE II
The question raised by the Appellant is if there is any evidence of trespass to warrant the grant of a paltry grant of the sum of N200,000.00k as general damages in favour of the Respondent.
That on damages for trespass or disturbance by the Appellants, it is submitted that since the trial Court has established the Respondent?s title to the land in dispute by credible and incontrovertible evidence, the act of the Appellant in disturbing Respondents? possession and ownership rights over the land in dispute constitutes gross acts of trespass for which the Appellant is liable to pay damages for the inconvenience caused to the Respondent. See Rockonoh Property Coy Ltd. V. Nigerian Telecommunications PLC. (2001) 14 NWLR (Pt. 733) 468 at 493.
On locus standi, the Respondent contended that it is not of place for the Appellant to allege that theRespondents do not have the locus standi to institute an action for trespass on their family land even if it was a portion of it. The Respondent is entitled to the award of damages for the trespass proved against the Appellants. See Babayeju v. Chief Ashamu (1998) 9 NWLR (pt. 567) 546, Yekinni Adedokun Oyadare v. Chief Olajide Keji (2005) NGSC 11.
Learned counsel submitted that as long as someone other than the owner has caused the disturbance, trespass has been committed.
It is therefore submitted by learned counsel that the Appellants misconstrued and misconceived the law by asserting that the Respondent does not have the legal right to claim damages for trespass simply because he has granted a portion of the entire land to some individuals for use.
He urged the Court to hold that the trial Court has given a fair assessment of the quantum of damages based upon the facts of this case and the reasonable man?s estimation or opinion.
The Court is urged to resolve this issue in favour of the Respondent.
ISSUE III
The issue formulated by the Appellants is whether the lower Court assessed the evidence putforward by the Appellants before ascribing the relationship of landlord/customary tenants to the parties before it contrary to the claim of the Appellants predicated on licensor/licensee relationship.
In arguing this issue, the Appellants have alleged the learned trial judge of not considering their traditional history and by the way speculating and guessing to reach a conclusion. He submitted that the Appellants learned counsel is misconceived as there was no evidence before the Court of a grant of license by the Appellants to the Respondent.
The Appellants in treating this issue has made a futile attempt to cast aspersions on the painstaking manner the learned trial Judge considered the issues canvassed by both parties with regards to their reliance on traditional history in the proving of their case. It is worthy of note that on page 273 of the record regarding the findings on the traditional history claim by the Appellant. It is submitted thatthe learned trial judge aside his logical conclusions, did a comprehensive review of the piece of evidence of DW1, DW2 and DW3 and made this finding on them.
It is further submitted thatcontrary to the assertion of the Appellants in the treatment of this issue, there abounds from the records sufficient proofs that the learned trial judge made adequate findings on the claim of the Appellants before reaching the verdict of the improbability of the Appellants story.
It is settled that where both parties to a suit rely on traditional evidence, the trial Court must make clear and positive statement as to which story it accepted and which side it believed before making its findings. See GRAHAM V. EUSMAI(1984) 11 SC 123. Therefore the trial judge was right to have held whether he believed the traditional history adduced before him or not after evaluating same. The trial Court succinctly held at page 274 of the records of Appeal that:
‘On the other hand, the Defendants had neither proved title through traditional history nor proved that the Claimant was a tenant in the land.’
The use of the word ‘tenant’ and ‘not license’ as the nomenclatures used by the trial Court is not worth making an issue in contention. The trial Court make a finding that the traditional history of ownership relied by the Appellant is manifestly unreliable to show that they gave the land to the Respondent in Igede Ekiti at any point in time, either as licensee or tenant. Also submitted is that there is even no proof acceptable to the trial Court that the Appellants ever granted license to the land to the Respondent.
It is trite law that you cannot place something on nothing and expect it to stand. See MCFOY v. UAC (1962) AC 152. It is submitted that since the traditional history upon which the Appellants rested his claim of grant of license to the Respondenthas failed, the argument of whether the alleged grant was a license or tenancy automatically goes to no issue and likewise bound to fail.
In the foregoing premises, it is submitted there is no merit on this ground of appeal and issue formulated and the Court is urged to dismiss same.
On the Appellant’s Reply brief dated 26/10/2018 and filed same date, the Appellant with respect went into another voyage of re-arguing his appeal contrary to section of the Court of Appeal Rules. In view of that, the said Reply brief is hereby discountenanced.
RESOLUTION OF ISSUES
The partiesin this appeal have distilled one and the same issues as formulated. However, the Appellants’ issues for determination shall be adopted for the purpose of the consideration of this appeal to wit;
1. Whether on the evidence or record, did the Respondent (who is the claimant at the lower Court) prove act of ownership and possession through any grant to a Church, school and an individual in person of Aluko Ijeda to warrant the grant of declaration of title to the land in dispute in his favour as done by the lower Court? (Grounds (iii), (iv) and (v) of the grounds of Appeal)
2. Is there any evidence of trespass to any land either owned by the Respondent or in possession of the Respondent to warrant an award of N200,000.00 (Two hundred thousand Naira) as general damages in his favour? (Ground (vi) of the grounds of appeal)
3. Did the lower Court assess the evidence put forward by the Appellants before ascribing the relationship of landlord/customary tenant to the parties before it contrary to the claim of the Appellant whose claim is predicated on licensor/licensee relationship? Grounds (vii),(viii) and (x) of the grounds of appeal.
4. Is there before the Court, a claim by the Respondent that ownership of the land in dispute devolved in on him as a king maker, warranting the court to award a declaration of title to the land in dispute in favour of the Respondent based on the status of Odogun as a king maker? Ground (ix) of the grounds of Appeal.
ISSUE NO.1
Whether on the evidence on record did the Respondent (who is the claimant at the lower Court) prove act of ownership and possession through any grant to a church, school and an individual in person of Aluko Ijeda to warrant the grant of declaration of title to the land in dispute in his favour as done by the Court below (Grounds (iii), (iv) and (v) of the ground of Appeal?.
Under this issue, it is submitted by Appellant’s counsel that the evidence on record does not support the findings of the lower Court that the Respondent proved a grant to the church, school or an individual nor shows any document evidencing the grants.
The Respondent demonstrated in his pleadings the various acts of ownership and possession including farming and leasing to the mother of the 1stdefendant for farming, giving the land for building of churches especially the St. John Anglican Church in 1935 and the part of the land upon which the Ekiti Baptist High School is sited on since 1956 as could be seen.
The 2nd Appellant. The custodian of the history of the Igede Kingdom reiterated.
‘Odogun family gave out part of the land occupied by Ekiti Baptist Boys High School. The land was given out by the Odogun because the original owner the Ajagemo was not available.’
See Akinola & Anr. V. Oluwo SCNLR 352 and also the evidence of DW1 under cross-examination that; The Ajagemo had long since died hence it was the Odogun who gave out the land to Ekiti Baptist Boys High School.
In addition, in paragraph 13 of Reply to Defendants statement of defence and counter-claim, there is this averment as follows:-
Odogun family undisputable gave out land to St. John Anglican Church Igede Ekiti and Ekiti Baptist Boys High School but no document was shown evidencing the grant, the Appellants made the same contention in the last sentence of paragraph 3.08 of the Appellant’s brief of argument that;
There is therefore no documentary evidence of any grant?.
It is on that basis that I agree with the submission of the Respondent that it was an erroneous interpretation of the law on the part of the Appellants to submit that since there was no documentary evidence in support of the customary grant of parcels of land by the Respondents to Ekiti Baptist Boys High School, St John Anglican Church and one Aluko Ijeda, that there was no valid grant. Therefore, I hold the view that the customary grant to the three beneficiaries is valid and lawfully granted.
The Court in the case of Obasohan v. Omorodion (2001) FWLR (pt.67) 992 affirmed that provisions of the Conveyance Law, does not regulate customary transactions to land. The requirement of documentary evidence to prove any transaction in land is merely and only applicable to lands in urban areas covered with statutory Right of Occupancy. By Section 1(2) of the Conveyance Law provides that transactions on lands in non-urban areas does not require documentary evidence to prove same.
This issue is resolved in favour of the Respondent.
ISSUE NO.2
Is there any evidence of trespass to any land owned by the Respondent or in possession of the Respondent to warrant an award of N200,000.00 (Two Hundred thousand Naira) as general damages in his favour.?
This issue arose from ground iv of the grounds of Appeal.
General damages is often presumed and awarded by the Court. However a plaintiff can only be obliged with the discretionary powers of the Court if from the evidence adduced by him, the relief is actually proved. In other words, without the proof of the relief, the Court is beset of the discretionary power to presume thatgeneral damages accrued and award same. See GTB v. Abiodun (2017) LPELR -42551 (CA).
In this particular appeal, what must be at the back of one’s mind is that since the trial Court in its own wisdom had established the Respondent’s title to the land in dispute by credible evidence adduced during trial, then it follows that the act of the Appellant in disturbing the Respondents’ possession and ownership rights over the land in dispute constitutes gross acts of trespass for which the Appellant is liable to pay damages for the inconvenience caused to the Respondent. An award of damages is within the discretionary powers of the Court. See British Airways v. Atoyebi (2014) LPELR 23120 (SC).
In the case of ROCKONOH PROPERTY CO. LTD. V. NIGERIAN TELECOMMUNICATIONS PLC (2001) 14 NWLR (pt.733) 468 at 493 FG the Supreme Court per Uwaifor, JSC said:
“General damages are always made as a claim at large. The quantum need not be pleaded and proved. The award is quantified by what, in the opinion of a reasonable person, is considered adequate loss or inconvenience which flows naturally, as generally presumed by law, fromthe act of the defendant. It does not depend upon calculation made and figure arrived at from specific items.”
The argument and submission of the Appellant that the Respondent does not have any legal right to claim for damages because they earlier on made a grant of part of the land in dispute does not avail him. As a party having a vast area of land, he can maintain an action for trespass against any individual who disturbs the peaceful enjoyment and possession of any part of the land thereof.
The land in dispute belongs to my father, the land in dispute is on Odogun?s land, I have not delegated Odogun family to litigate on my behalf in respect of the property. What the Appellant is saying is that the Respondents lack the locus standi to institute an action for trespass on their family land even if it is a portion therein.
Locus Standi denotes the legal capacity to institute proceedings in Court. On no account should the merits of the case be considered before locus standi is decided. Locus standi affects the jurisdiction of the Court.
Consequently if the plaintiff does not have locus standi to institute the suit, the Court would have no jurisdiction to entertain the suit. Usually it is the plaintiff that is questioned as to whether he has locus standi. See Nurses Association v. A.G. (1981) 11-12 SC 1, Thomas v. Olufosoye (1986) 1 NWLR (pt. 18) 669, Pacers Multi-Dynamic Ltd. v. MVD Dancing Sisters & Anor (2012) 1 SC (pt. 1) 75. See also Babayeju v. Chief Ashamu (1998) 9 NWLR (pt. 567) 546. In the case of Yekinni Adedokun Oyadare v. Chief Olajide Keji (2005) NGSC 11, the Court affirmed that a party can bring an action for trespass without necessarily proving that he is the exclusive owner of the land in dispute. As long as someone other than the owner has caused the disturbance, trespass has been committed. The Court specifically held that.
Anyone other than the true owner, who disturbs somebody else’s possession on the land, can be sued in trespass and it is no answer for a defendant to say that title to the land is in another person.
As previously held in the course of this judgment, an award of damages is at the discretionary powers of the trial judge. The Court in this matter has given a fair assessment of the quantum of damages in the exercise of his discretion both judicially and judiciously. This issue is resolved in favour of the Respondent.
ISSUE III
Did the lower Court assess the evidence put forward by the Appellants before ascribing the relationship of landlord/customary tenant to the parties before it contrary to the claim of the Appellants whose claim is predicated on licensor/licensee relationship.? (Grounds VII, VIII, and X of the grounds of Appeal)
Parties claim are predicated on their pleadings. The Appellants Amended Statement of Defence and counterclaim is at pages 149 to 153 of the Records of Appeal. Particularly claims (c) and (d) of the counterclaim contained in pages 153 of the Records of Appeal.
The evidence of all defence witnesses is to the fact that the Odogun family is mere licensee on Ajagemo land. The 1st Appellant never talked about payment of rent by the predecessors in title of the Respondent but asked that since the present crop of Odoguns challenged the Ajagemo Authority, their license should be revoked while they henceforth pay tribute.
To show that from time immemorial theland belonged to Ajagemo, the Appellant tendered the history book of Igede which was admitted in evidence as Exhibit 3, the lower Court that admitted the treatise in evidence, later made a detour that it will only act on the English translation of the book. However with or without placing reliance on Exhibit 3, the Traditional Ruler of Igede Ekiti (CW1) and the second in command to the Oba, (CW2) who happens to be the quarter head of where the land in dispute is situate gave challenged evidence that the Odoguns are mere licensee on Ajagemo land.
What the Appellant seem to be alleging under this issue is that the lower Court failed to consider their traditional history and was speculating and guessing to reach a conclusion in the matter. By the trial judge at page 273 of the records made a comprehensive review of the evidence of DW1, DW2 and DW3 and came to the conclusion when he held thus:
“The traditional history of the land as narrated by the defendants/counter claimants was simply incredible and therefore not worthy of belief.”
It is settled that where both parties to a suit rely on traditional evidence, thetrial Court must make clear and positive statement as to which story it accepted and which side it believed before making its findings. See GRAHAM v. EUSMAI (1984) 11 SC 123. Therefore the trial judge was right to have held whether he believed the traditional history adduced before him or not after evaluating same. The trial court succinctly held at page 274 of the records of Appeal that:
“On the other hand, the Defendants had neither proved title through traditional history nor proved that the Claimant was a tenant in the land.”
The lower Court made specific finding on the claim of ownership through traditional history put forward by the Respondent. The Court held that the Respondent failed to adduced evidence in support of this. However, the lower Court did not make any findings as to the claim of the 1st Appellant that pleaded that the Respondent?s forebears met his predecessors-in-title on the land. The 1st Appellant in his pleadings and evidence in chief mentioned his forebears who had been in physical possession and exercised ownership over the land before the arrival of the Respondent’s predecessor-in-title ‘Odubaba Alejo’.
The 1st Appellant’s three (3) witnesses made it clear that the predecessor in title of the Respondent met the predecessor in title of the 1st Appellant on the land in dispute. The lower Court made no specific finding on whether it believed or disbelieved this evidence of the Appellants, rather, the lower Court went into speculations as to what ought and out not to have been done by the erstwhile holders of the positions of DW1 and DW2.
From the records, it is clear that the traditional history which the Appellants intended to rely on to prove a license on land to the Respondent was out rightly discountenanced by the trial Court for being incredible and unbelievable. The trial Court made a finding that ‘the Defendants had neither proved title through traditional history..’ at page 274 of the Records of Appeal. Therefore, bringing an appeal on the ground that the trial judge used the term ?tenant? instead of ‘license’ is totally unfounded and unwarranted because the alleged grant as license was anchored on evidence of traditional history which was discountenanced by the trial Court. And so one cannot place something on nothing and expect it to stand. See Mcfoy v. U.A.C. (1962) AC 152.
This issue is resolved against the Appellants and in favour of the Respondent.
ISSUE IV
Is there before the Court, a claim by the Respondent that ownership of the land in dispute devolved on him as a King Maker, warranting the Court to award declaration of title to the land in dispute in favour of the Respondent based on the status of Odogun as a king maker? (Ground IX of the grounds of Appeal).
The Court is referred to the judgment of the lower Court at page 272 of the record of appeal where in its judgment at 272 of the Records of Appeal.
The lower Court held as follows, it was conceded by the DW1 and DW2 that the Odogun chieftaincy was kingmaker in Igede Ekiti. It would be strange indeed that a family whose chieftaincy is one of the kingmakers in a town would not have a residential or farm land it could refer to as her own. If an important post as a kingmaker would be conceded to a family, definitely some parcel of land would have been conceded him earlier?.
Both inhis pleadings and his evidence, the Respondent never claimed that the land dispute devolved on his family as a result of being Odogun chieftaincy title hold. The Dw1 who is the Oba and paramount Ruler of Igede Ekiti testified that ‘by the time, the predecessor in title of the Respondent came to Igede Ekiti, there was no land that was vacant and he was asked to stay with an existing chief’ see page 1 of the Records of Appeal.
Therefore the verdict of the Court that as a kingmaker the Respondent family must definitely have some parcel of land conceded to it is an assumption and supposition gone into by the Court contrary to the evidence before it. It is not within the province of the Court to go into speculations of what ought to be.
Can the above comments of a judge be regarded as a finding? In the case of Olora v. Adegbite (2013) 1 NWLR (pt. 1334) 40 at 64, the Court held.
The law is that a comment by a judge is not the same as findings of facts on issues. In the course of writing a judgment, a Court is bound to air his views and make comments here and there and may also give reasons for certainfindings. The concern of the Appellant Court is to determine whether the decision of the trial Court is right and not whether the reasons for the decision are right. See Nkado v. Obiano (1997) 5 NWLR (pt. 503) 31 at 56, Nwankwo v. E.D.S.U.A. (2007) 5 NWLR (pt. 1027) 377?.
The above comment of the trial judge was not the basis for the judgment of the Court. With respect to learned Appellant’s counsel, there is no substance in this complaint and it is hereby discountenanced.
Having resolved all the issues in favour of the Respondent, the fate of this appeal is already obvious. The appeal is devoid of merit and it is hereby dismissed.
Consequently, the judgment of the lower Court is hereby affirmed. Cost is assessed and fixed at N50,000 in favour of the Respondent.
Appeal Dismissed.
AHMAD OLAREWAJU BELGORE, J.C.A.:I have had the advantage of a preview of the judgment just delivered by my learned brother, Paul ObiElechi, JCA andI agree that the appeal is devoid of merit and it is hereby dismissed. The judgment of the lower Court is hereby affirmed. Cost is assessed and fixed at N50,000.00 in favour of the Respondent.
Appeal Dismissed.
FATIMA OMORO AKINBAMI, J.C.A.:I agree.
Appearances:
Chief J. O. Ayeni with him, Olukunle Dada, Esq. For Appellant(s)
Olojede Oluwafemi Abiodun, Esq. For Respondent(s)
