GANIYU & ORS v. OTEGBOLA & ORS (2020)

GANIYU & ORS v. OTEGBOLA & ORS

(2020)LCN/14195(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/IB/31/2016

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ALHAJI NURUDEEN GANIYU & 7 ORS APPELANT(S)

And

MOBOLAJI OTEGBOLA & 6 ORS RESPONDENT(S)

RATIO

ADMISSIBILITY OF A DOCUMENTARY EVIDENCE

The law is settled that the fact that a document has been admitted in evidence does not automatically mean the content is established, and that evidence contained therein must be accepted by the trial Judge. Admissibility of a document in evidence is one thing while the weight to be attached to it is another. See ABUBAKAR VS. CHUKS (2007) 18 NWLR (pt. 1066) 386, HARUNA VS. ATTORNEY GENERAL, FEDERATION (2012) 9 NWLR (pt. 1306) 419 and GBAFE VS. GBAFE & ORS (1996) 6 NWLR (pt. 455) 417. PER OJO, J.C.A.

DUTY OF COURT TO DO SUBSTANTIAL JUSTICE BETWEEN PARTIES IN DISPUTE

It is trite that a Court before whom a proceeding pending or has been completed may take judicial Notice of all the processes filed in the proceeding. See OSAFILE & ANOR VS. ODI & ANOR (1990) 3 NWLR (pt. 137) 130, MILITARY GOVERNOR, LAGOS STATE & ORS VS. ADEYIGA & ORS (2012) 5 NWLR (pt. 1293) 291 and GARUBA VS. OMOKHODION (2011) 15 NWLR (pt. 1269) 145.
It is further the law that a Court is at liberty to look at and utilize a document in its file while writing its judgment or ruling even though such document was not tendered and admitted as an exhibit at the trial.
This is because it is the duty of a Court to do substantial justice between the parties in the resolution of the issues in controversy between them. See UZODINMA VS. IZUNASO (NO. 2) (2011) 17 NWLR (pt. 1275) 30; FUNDUK ENGINEERING LTD. VS. MCARTHUR (1995) 4 NWLR (pt. 392) 640; OYEWOLE VS. AKANDE (2009) 15 NWLR (pt. 1163) 119 and AGBAISI VS. EBIKOREFE (1997) 4 NWLR (pt. 502) 63. In the case of AGBAHOMOVO VS. EDUYEGE (1999) 3 NWLR (pt. 594) 170, Onu, JSC held thus:
“This Court has of recent the occasion to decide a not-too-dissimilar case as this in CHIEF M.O.A. AGBAISI & 3 ORS VS. EBIKOREFE & 6 ORS (1997) 4 NWLR (pt. 502) 630, where the question that arose for resolution was which of the two plans prepared by two named surveyors was that which the learned justice of the Court of Appeal looked at while considering the appeal therein. I held at page 648 of the report inter alia as follows:
“It is clear from the above quoted passage that the plan the learned justice looked at is the plan prepared by PWI surveyor Chukwurah and not the one prepared by surveyor Obianwu. The next logical question is whether he has a right to look at the document in the file which was not tendered as an exhibit my answer to this question is in the affirmative…
The next pertinent question is if it were a plan that was amended as contended by the Appellants, can the Court look at it an make use of it my answer is that it can as this Court did in its recent decision in SALAMI & ORS VS. OKE (1987) 4 NWLR (pt. 63) 1 at 9…..” PER OJO, J.C.A.

WHETHER OR NOT FACTS NOT PLEADED SHOULD BE GIVEN IN EVIDENCE

The law is further trite that an issue of fact which was not pleaded should not be given in evidence and where it is such should be rejected by the Court. Furthermore, evidence elicited cross examination on facts which are not pleaded go to no issue and inadmissible in evidence. Where such evidence is inadvertently or wrongly admitted it should be expunged from the record. See LONGE VS. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (pt. 1189) 1; AMINU & ORS VS. HASSAN & OR (2014) 5 NWLR (PT. 1400) 287; IGE & ANOR VS. AKOJU & ORS (1994) 4 NWLR (PT. 340) 535. PER OJO, J.C.A.

THE MEANING OF THE TERM “MISCARRIAGE OF JUSTICE”

The next question now is whether the error of the Learned Judge occasioned such miscarriage of justice to warrant the setting aside of the judgment. The term “miscarriage of justice” has been variously defined. It is a substantial wrong which occurs during a trial which so affects the proceeding so as to merit quashing the result. It is a wrong decision made by a court as a result of which an innocent person is punished. It is a grossly unfair outcome in a judicial proceeding. It is a failure of a Court or judicial system to attain the end of justice.
A miscarriage of justice is also said to have occurred in a situation where if such a finding had not been made by the Court there is a reasonable probability that a party would have got a more favourable outcome. It would also be said to have occurred where in the course of a proceeding the goal post was shifted to the detriment of one of the parties. It is however the law that for a miscarriage of justice to result in the reversal of a decision, it must be such that after the examination of the entire case including the evidence, the Appellate Court is of the opinion that it is reasonably probable that a result more favourable to the Appellant would have been reached in the absence of the error by the Trial Court. See LARMIE VS. DATA PROCEESING MAINTENANCE AND SERVICES LIMITED (2005) 18 NWLR (PT. 958) 438; KRAUS THOMPSON ORGANISATION LTD. VS. UNIVERSITY OF CALABAR (2004) 9 NWLR (PT. 879) 631; GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282 and AIGBOBAHI VS. AIFUWA 2006) 6 NWLR (PT. 976) 270. PER OJO, J.C.A.

PROOF OF TITLE TO LAND IN AN ACTION FOR DECLARATION OF TITLE TO LAND

The law is settled that a party who claims declaration of title to land must plead and prove that he is entitled to the land he claims. He must prove his source of title the identity, the size as well as the boundaries of the land. A party who seeks declaration of title to land may prove same by any of the following five methods:
1) By traditional evidence.
2) By production of document of title.
3) By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner of the land.
4) Long possession.
5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land.

DUTY OF A PARTY TO BE CONSISTENT IN HIS CASE

The law is settled that a party has a duty to be consistent in his case. A party should not be allowed to blow hot and cold in the same proceeding. See COUNTY AND CITY BRICKS DEVELOPMENT COMPANY LIMITED VS. MINISTER ENVIRONEMENT; HOUSING AND URBAN DEVELOPMENT & ANOR (2019) 5 NWLR (pt. 1666) 484; SALISU VS. MOBOLAJI (2016) 15 NWLR (pt. 1535) 242 and PINA VS. MAI-ANGWA (2018) 15 NWLR (pt. 1643) 431 at 442 para B. The Learned Trial Judge at page 416 of the Record held thus:
“In view of the contradiction and inconsistency in the evidence of the 4th – 8th Defendants as to their title, I prefer the evidence of title given by the 6th Claimant in respect of the land in dispute to that of the Defendants. It is the law that a Claimant must succeed on the strength of his own case notwithstanding the weakness of the Defendants’ case. See AREMU VS. ADETORO (2007) 16 NWLR (pt. 1060) 244 at 256. The Claimants have proved their title to the land in dispute on balance of probability. See ASHIRU VS. OLUKOGA (2006) 11 NWLR (PT. 990) 1.” PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court sitting in Otta Judicial Division in Suit No: HCT/361/2006 delivered on 7th of July, 2015.

The Respondent as Claimants vide a writ of summons filed on the 9th of July, 2012 sought the following reliefs against the Appellants as defendants:
1. An Order of perpetual injunction restraining the Defendants by themselves, servants, agents, assigns or privies from further dealing with the Claimants five Plots of Land, the subject matter of this suit and from committing any further act of trespasses or in any manner, whatsoever, disturbing the Claimants possession of the five Plots of land situate lying and being at No. 7,9,11,13 and 15 Olaniyonu Street Area Ope-Ilu, Agbado Railway Station, Ado-Odo Ota Local Government Area of Ogun State, Nigeria shown and more particularly described on Survey Plan Nos. LAA8A/3786; LAA8A/31/87; LAA8A/3686jGCD 102, all extract from LAA8A/23/BLK A – E 186 S.
2. A declaration that the Claimants are the owners holder and persons entitled to Statutory Right of Occupancy over and in respect

of all that piece or parcel of land aforesaid.
3. A declaration that any assignment, sales Mortgage or any form of altering whatsoever of the Claimants’ aforesaid piece or parcel of land either by or to the Defendants or any other person, institution, or body is void.
4. Five Hundred Thousand Naira (N500,000.00) damages against the Defendants for unlawful entry and trespass upon the Claimants’ land aforesaid.
5. A mandatory order of injunction directed against the Defendants and their agent privies and assigns to vacate forthwith the aforesaid land and yield up possession to the Claimants herein.”

Parties filed and exchanged pleadings at the Lower Court and the case went on to trial. After the close of evidence and adoption of final written addresses of Counsel, the trial Judge delivered his judgment. In a considered judgment delivered on the 7th of July, 2015, he found for the Claimants who are the Respondents in this appeal and held at pages 416-417 of the Record as follows:
“In view of the contradiction and inconsistency in the evidence of the 4th – 8th Defendants as to their title, I prefer the evidence

of title given by the 6th Claimant in respect of the land in dispute to that of the Defendants. It is the law that a Claimant must succeed on the strength of his own case notwithstanding the weakness of the Defendant’s case. See AREMU VS. ADETORO (2007) 16 NWLR (pt. 1060) 244 @ 256. The Claimants have proved their title to the land in dispute on balance of probability. See ASHIRU VS. OLUKOYA (2006) 11 NWLR (pt. 990) 1. From the above, relief (2) for entitlement to statutory Right of Occupancy over the land in dispute by the Claimants is hereby granted.”

Aggrieved by the decision of the Lower Court, the Appellants filed the instant appeal. The Notice of Appeal contained at pages 420-422 of the Record was filed on 7th of July, 2015. The Notice of Appeal was subsequently amended. The Amended Notice of Appeal with eight grounds of Appeal filed on 26th of April, 2019 was deemed properly filed and served on 15th October, 2019.

In line with the rules of this Court, parties filed and exchanged briefs of Argument. The Appellants brief of Argument settled by I.I. Oseni of Counsel filed on 17th January, 2020 was deemed properly filed on 22nd January,

The Respondents brief of Argument settled by M.O. Folorunsho of Counsel was filed on 21st February, 2020. The Appellant’s Reply brief was filed on 6th March 2020.Learned Counsel to the Appellant formulated five issues for the determination of this appeal in the Appellant’s brief of Argument. The issues are:
1) Whether the Learned Trial Judge was right to have refused to attach any weight or probative value to Exhibit D in view of Exhibit P and the evidence of the party’s witnesses. (Grounds 1 and 2 of the Amended Notice of Appeal).
2) Whether the learned trial Judge was right to have placed reliance on document (no exhibit number) in the Court’s file after the Court rejected the same document when it was tendered at the trial.
3) Whether in view of the contradictions in the Claimants/Respondents’ evidence of partition of the land of Dina Okeke the Learned Trial Judge ought to have held that there was a partition of the Ogisanrin Osan family land.
4) Whether the Learned Trial Judge was right to have held that the Claimants had consistently, contested the validity of Exhibits K.S.U and A (Grounds 5, 6

and 7).
5) Whether from the totality of the evidence before the Learned Trial Judge, the Court ought to have granted the claim of the Claimants.

For his part, Learned Counsel to the Respondents distilled the following issues for the determination of this appeal on behalf of the Respondents:
1) Considering the totality of the case of the parties at the trial Court, could it be said that the eminent trial Judge was wrong in attaching no probative value to Exhibit D? (Grounds 1 and 2 of the Appellants Amended Notice of Appeal).
2) Was the eminent trial Judge wrong in placing reliance on the content of a Court process in his Lordships folder (Ground 3 of the Appellants’ Amended Notice of Appeal).
3) Premised on the evidence adduced across the divide, did the eminent trial Judge err in holding that the land of Ogisanrin Osan family has been partitioned? (Ground 4 of the Appellants Amended Notice of Appeal).
4) Based on the generality of the evidence before the eminent trial Judge, have the Appellants shown any miscarriage of justice resulting from the finding that Claimants (Respondents) consistently contested the

validity of Exhibits, K,S,U and Q
(Ground 6 of the Appellants’ Amended Notice of Appeal.
5) Was the eminent trial Judge wrong in granting the claims of the Respondents?
(Grounds 5, 7 and 8 of the Appellants Amended Notice of Appeal).

At the hearing of this appeal on the 10th of March, 2020, Counsel on both sides adopted their respective briefs of arguments and their oral submissions in urging us to allow or dismiss the appeal.

Upon a perusal of the issues formulated by both parties, I find them to be the same in context. I shall therefore resolve this appeal on the five issues distilled on behalf of the Appellants with some slight modification.

ISSUE NO. 1
Whether the Learned Trial Judge was right when he refused to attach any weight to Exhibit D.

Learned Counsel to the Appellant in arguing this issue submitted and urged us to hold that the Learned Trial Judge misdirected himself in law when he refused to attach probative value or weight to Exhibit D. He submitted Exhibit D constitutes clear evidence of 1st Appellants’ ownership of the land which devolved on him upon the death of his mother. He argued further

that failure of the trial Judge to attach any probative value to Exhibit D and consider Exhibits N and MMI is tantamount to failure to make findings of fact on material evidence placed before the Court. He relied on the cases of KALIO VS WOLUCHEM (1985) 1 NWLR (pt. 4) 610 at 622 RAYMOND VS. ALLAN 2 WACA 52 at 53 and AWOTE VS. OWODUNNI (NO. 2) 1987 NWLR.

He finally urged us to hold that the trial judge failed to properly evaluate the evidence on record and resolve this issue in favour of the Appellants.

Arguing per contra, Learned Counsel to the Respondents submitted that the Learned Trial Judge evaluated Exhibit D and made specific findings on it when he held it had no probative value. He submitted the Appellants did not challenge the findings of fact made by the Learned Trial Judge that Exhibit D was not sufficiently linked to the land in dispute. He further submitted that Exhibit D has no evidential value and this being so the Lower Court was right when it refused to attach any probative value to it. He urged us to resolve this issue in favour of the Respondents.

The law is settled that the fact that a document has been admitted in evidence

does not automatically mean the content is established, and that evidence contained therein must be accepted by the trial Judge. Admissibility of a document in evidence is one thing while the weight to be attached to it is another. See ABUBAKAR VS. CHUKS (2007) 18 NWLR (pt. 1066) 386, HARUNA VS. ATTORNEY GENERAL, FEDERATION (2012) 9 NWLR (pt. 1306) 419 and GBAFE VS. GBAFE & ORS (1996) 6 NWLR (pt. 455) 417.

Exhibit D is a judgment delivered by Agbado Grade II Customary Court on 19th February, 2004 in SUIT NO. ABG/285CV/2003 between ALHAJI NURUDEEN GANIYU AND SOLOMON DADA. It is at pages 205-209 of the Record of proceedings. The land in dispute in Exhibit D is two acres of land situate at Mapora village Near Ope ilu, Agbado Station, Ogun State. The land the subject matter of the instant appeal is described by the Respondent as Nos. 7, 9, 11, 13 and 15 Olaniyonu Street beside Jubolad Hotel, Ifedapo Estate, Mapora Area, Ope ilu Agbado Railway Station, Ado Odo Ota Local Government Area, Ogun State. I have gone through the entire record, and I find no evidence on record that connects or demonstrates that the land, the subject matter of this appeal described

by the Respondent is one and the same as that in Exhibit D.

The law is settled that a Court of law would only act on empirical facts placed before it by the parties. It is not part of the functions of a Court to speculate. See AWOLOLA VS. GOVERNOR OF EKITI STATE & 2ORS (2009) 6 NWLR (pt. 1668) 247; OLALOMI INDUSTRIES LIMITED VS. NIGERIAN INDUSTRIAL DEVELOPMENT BANK LTD. (2009) 16 NWLR (pt. 1167) 266 and ARCHIBONG & ORS VS. ITA & ORS (2004) 2 NWLR (pt. 858) 590.

Learned Counsel to the Appellants have however argued that Exhibits M, MI and N constitute sufficient proof of the land covered by Exhibit D. Exhibit M-MI is the Ogisanrin Osan family land official receipt dated 5th of August, 1975. Exhibit N is the survey plan No: KESH/L/1423. From the pleadings and the evidence thereon adduced before the Lower Court, Exhibit N is in respect of 20 acres of land allegedly owned by the 1st Appellant’s mother. Exhibit M-MI was also tendered as proof that the Ogisanrin Osan family gave the 1st Appellant’s mother 15 acres of land. There is no evidence that the 2 acres of land the subject matter of Exhibit D forms part of the 20 acres of land

allegedly owned by the 1st Appellant’s mother in Exhibit N. The Appellants did not adduce any evidence to link Exhibit N with Exhibit D. It is the duty of a party that tenders a document to link it to the case at hand and demonstrate the purpose to which he desires to put the document. Where he fails to do so he is deemed to have dumped the documents on the Court. See LADOJA VS. AJIMOBI & ORS (2016) 10 NWLR (pt. 1519) 88, UCHA VS. ELECHI (2012) 13 NWLR (pt. 1317) 330, and MAKU VS. ALMAKURA & ORS (2016) 5 NWLR (pt. 1505) 201.

Even though Exhibit N is a survey plan, it still behooves on the Appellants to give credible evidence that it relates to the land the subject matter of Exhibit D. This the Appellant failed to do. Having failed to adduce credible evidence to link the survey plan tendered with the subject matter of the suit covered by Exhibit D, it does not lie in the mouth of the Appellants to say the trial Court did not attach any weight to the document. It is not the duty of the trial Court and indeed this Court to do for the Appellants what they failed to do when D.W. 2 was in the witness box. It was for the reason of failure to adduce

credible evidence to link Exhibit M-MI and N with Exhibit D that the learned trial Judge held amongst others that the 1st Appellant failed to tender a dispute plan in evidence. The 1st Appellant who pleaded that the land in dispute falls within that litigated upon in Exhibit D had a duty to prove it and failure to do so is fatal. A judge has no business doing for parties what they themselves omitted to do. It is not for the Court to fill the lacuna in the evidence before it. See OMOREGBE VS. LAWANI (1980) 3-4 SC 108; EHOLOR VS. OSAYANDE (1992) 6 NWLR (pt. 249) 524; SODIPO VS. LEMMINKAINEN (1985) 2 NWLR (pt. 8) 547 and ELIKE VS. NWAKWOALA (1984) IANLR 505.
In ISHOLA VS. UNION BANK OF NIGERIA LTD. (2005) 6 NWLR (pt. 922) 422 at 439 paras D-E, Kalgo JSC held thus:
“The Court can only use a document properly admitted before it for the purpose for which it was admitted. It is not open to the Court to use the document other than for the purpose not intended by parties as pleaded unless the attention of the Court is drawn by any of the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on

the point before making a decision on it. This, in my view is the only legitimate use of the document admitted in evidence in Court.”

It therefore stands to reason that there is a limit to which the Appellants may put Exhibits M-MI and N on this case. Having failed to adduce any evidence linking the exhibits to the judgment, Exhibit D, the Lower Court was right not to attach any probative value to it on a parcel of land different from that the subject matter of the case under consideration. No weight should be attached to Exhibit D in the circumstance. I therefore resolve this issue in favour of the Respondents and against the Appellants.

ISSUES NO. 2
Whether the learned trial Judge was right to rely on a document in his file after it was rejected in evidence during trial.

It is not in dispute that in the course of the trial before the lower Court the 4th – 8th Appellants on the 4th of September, 2007 filed an application in which they sought to be joined as Defendants to the suit. The application was granted. On the 28th April, 2014, the 7th Appellant while testifying as DW1 said he purchased the land from Anuke Ganiyu Dopemu

even though he had stated in paragraph 4(e) of the Affidavit in support of the motion filed on 4th September, 2007 that himself and Mrs. purchased their portion of land from the 1st Appellant. To test the veracity of D.W.I, learned Counsel to the Respondent sought to contradict him using the affidavit in support of the motion. He applied to tender the motion in evidence which application was rejected on the ground that the copy sought to be tendered was not a certified true copy.

the resolution of the issues in controversy between them. See UZODINMA VS. IZUNASO (NO. 2) (2011) 17 NWLR (pt. 1275) 30; FUNDUK ENGINEERING LTD. VS. MCARTHUR (1995) 4 NWLR (pt. 392) 640; OYEWOLE VS. AKANDE (2009) 15 NWLR (pt. 1163) 119 and AGBAISI VS. EBIKOREFE (1997) 4 NWLR (pt. 502) 63. In the case of AGBAHOMOVO VS. EDUYEGE (1999) 3 NWLR (pt. 594) 170, Onu, JSC held thus:
“This Court has of recent the occasion to decide a not-too-dissimilar case as this in CHIEF M.O.A. AGBAISI & 3 ORS VS. EBIKOREFE & 6 ORS (1997) 4 NWLR (pt. 502) 630, where the question that arose for resolution was which of the two plans prepared by two named surveyors was that which the learned justice of the Court of Appeal looked at while considering the appeal therein. I held at page 648 of the report inter alia as follows:
“It is clear from the above quoted passage that the plan the learned justice looked at is the plan prepared by PWI surveyor Chukwurah and not the one prepared by surveyor Obianwu. The next logical question is whether he has a right to look at the document in the file which was not tendered as an exhibit my answer to this question is in

the affirmative…
The next pertinent question is if it were a plan that was amended as contended by the Appellants, can the Court look at it an make use of it my answer is that it can as this Court did in its recent decision in SALAMI & ORS VS. OKE (1987) 4 NWLR (pt. 63) 1 at 9…..”
A process in a Court’s file form part of its record. Where the process has been amended, the Court may still look at it and make use of it. The motion for joinder filed before the Lower Court and the affidavit in support are part of the record of the Court. The fact that a copy of it was rejected because it was not certified does not remove this fact. The motion in the Court’s file was still in the file and constitute part of the record of the Lower Court. It is a process which the Court may take judicial Notice of and I so hold. This issue is again resolved in favour of the Respondents.

ISSUE NO. 3
Whether the Lower Court was right when it held that the Ogisanrin Osan family land had been partitioned.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned Counsel to the Appellants while arguing this issue submitted that the trial Judge erred when he relied on the contradictory evidence of CW1, CW2, CW3 and CW4 who were witnesses for the Respondents at the lower Court to hold that the family land of Ogisanrin Osan was partitioned. He submitted that the witnesses who gave contradictory evidence are not credible witnesses whose evidence should be relied on. He craved in aid the case of OYADIJI VS. OLANIYI (2005) ALL FWLR (pt. 288) 1083 at 1093–1094 and IKEGBOWAM VS. ONUWUBUYA & ORS (2007) ALL FWLR (pt. 245) 379.

Learned Counsel to the Respondents in response argued that the evidence alleged to be contradictory was elicited from CW4 under cross examination on a fact not pleaded by any parties. He submitted that evidence elicited under cross examination on a fact not pleaded goes to no issue. He relied on the case of OTARU & SONS VS. IDRIS & ANOR (1999) LPELR – 419 (SC) at 47 paras D-E; OLORA VS. ADEGBITE (2012) LPELR – 7973 (CA) 1 at 26-27 paras G-A and HABU VS. ISA 2012 LPELR 15189 (CA) 1 at 46-47 paras C-F.

He submitted that the Appellants are deemed to have

admitted the land was partitioned when they failed to specifically deny paragraph 18 of the amended statement of claim wherein the Respondents as Claimants averred the land was partitioned. He craved in aid the case of EGBUTA & ANOR VS. ELEKWACHI & ANOR (2013) LPELR – 20666 (CA) AND 51 – 52 and POPOOLA VS. BALOGUN (2006) LPELR 5420 (CA) 1 at 41 – 42 paras E-D.

Partitioning is one of the ways by which family land property may be shared amongst members or branches of the family. It must be with the consent of the family members. The family head cannot therefore without the consent of members of the family partition family property. It is also significant to note that what constitute partitioning of family land or property is a question of fact and where such fact is pleaded, it must be backed up by cogent and positive evidence. See YESUFU VS. ADAMA (2010) 5 WWLR (pt. 1108) 522; OLORUNFEMI VS. ASHO (2000) 2 NWLR (pt. 643) 143; SOGBAMU VS. ODUNAIYA (2013) ALL FWLR (pt. 700) 1249; MAYA VS. OSHUNTOKUN (2001) 11 NWLR (pt. 723) 62 and TAIWO VS. TAIWO I WSCC 46.

CW1 who was the head of the Ezekiel Bankole Dada branch of the Ogisanrin

Osan family testified that the need to partition their family land arose because of the large size of the family. Learned Counsel to the Appellants argument is that the evidence of CW1 was contradicted by CW6 when in answer to a question under cross examination stated she was told the land was partitioned by Aina keke.

The question now is whether the fact of who partitioned the land was made an issue by the parties before the lower Court. I have gone through the pleadings of parties and there is nowhere the fact of who partitioned was made an issue. The case of the Respondents before the Lower Court from his pleadings and on which CW1 gave evidence is that the land was partitioned and same was because of the increase in size of the family after the death of their progenitor.

The Appellants did not make an issue of who did the partitioning. They admitted in the statement of defence that the land was partitioned but the fact of who partitioned is not contained therein. The Appellants in paragraphs 20 to 25 of their Amended Statement of defene averred thus:
“20. The land in dispute was partitioned between the 4 stocks of Aina Keke.

That after the land was partitioned, she was given another 5 acres as her entitlement as a member of the family. Both the 15 acres and the 5 acres fell within the same area and were together. Making a total of 20 acres.”The 1st Appellant, Nurudeen Ganiyu who testified as DW1 stated in his witness statement on oath as follows:
“That after the land was partitioned, she was given another 5 acres as her entitlement as a member of the family. Both the 15 acres and the 5 acres fell within the same area and were together making a total of 20 acres.”

It is evident from the pleadings of parties at the Lower Court that the fact of who partitioned the Ogisanrin Osan family was not in issue. None of the parties averred any fact to that effect. The law is settled that parties are bound by their pleadings and that evidence led on facts not pleaded go to no issue. See ACHONU VS. OKUWOBI (2017) 14 NWLR (pt. 1584) 142; SOGUNRO & ORS VS. YEKU & ORS (2017) 9 NWLR (pt. 1570) 290; OLOHUNDE VS. ADEYOJU (2000) 10 NWLR (pt. 676) 562 at 585 and EHIMARE VS. EMHONYON (1985) NWLR (pt. 2) 177.

The Appellants who pleaded facts and gave

evidence to the effect that the family land was partitioned cannot turn round to argue that the Lower Court erred when he held that the Ogisanrin Osan family land was partitioned. The law is settled that facts not disputed are deemed established and need no further proof. See OGAR VS. IGBE (2019) 9 NWLR (pt. 1678) 534; ALAHASSAN & ANOR VS. ISHAKU & ORS (2016) 10 NWLR (pt.1520) 250; SOGUNRO & ORS VS. YEKU & ORS (2017) 9 NWLR (pt. 1570) 290 and NIGERIAN BOTTLING CO. PLC VS. UBANI (2014) 4 NWLR (pt. 1398) 421.

The law is further trite that an issue of fact which was not pleaded should not be given in evidence and where it is such should be rejected by the Court.

Furthermore, evidence elicited cross examination on facts which are not pleaded go to no issue and inadmissible in evidence. Where such evidence is inadvertently or wrongly admitted it should be expunged from the record. See LONGE VS. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (pt. 1189) 1; AMINU & ORS VS. HASSAN & OR (2014) 5 NWLR (PT. 1400) 287; IGE & ANOR VS. AKOJU & ORS (1994) 4 NWLR (PT. 340) 535.

The evidence elicited from CW6 and under cross-examination

that Aina Keke himself partitioned the Land is inadmissible evidence and it is hereby expunged from the record.

It is clear from all of the above that there is no controversy on the fact that the Ogisanrin Osan family land was partitioned. The finding of the Learned Trial Judge that the Ogisanrin Osan family land was partitioned is supported by admissible evidence and I so hold.
This issue is thus resolved in favour of the Respondents and against the Appellants.

ISSUE NOS. 4
Whether the finding of the Trial Judge that the Claimants consistently contested the validity of Exhibits K.S.U and Q occasioned a miscarriage of justice.

Learned Counsel to the Appellants position is that the validity of Exhibits K.S.U and Q were not put in issue by the parties in their pleadings.

He submitted, the Trial Court was therefore in error when it made it an issue and made findings thereon. He urged us to resolve this issue in favour of the Appellants.

Learned Counsel to the Respondents for his part conceded that parties did not in their pleadings join issues on the signature in Exhibits K.S.U and Q.

His contention however is that the

pronouncement on the said exhibits by the Lower Court is a slip and submitted that it is not every slip in the judgment of a Court that will lead to its reversal. He craved in aid of his submission the cases ofBAYOL VS. AHEMBA (1999) LPELR – 761 (SC) 1 at 24 – 25 paras G-D; EZE & ORS VS. OBIEFUNA & ORS (1995) LPELR 1191 (SC) 1 at 14 A-C.

What would amount to a slip under the “Slip Rule” are accidental slips, omissions and clerical mistakes in a judgment which may be amended even without Notice to parties. See NWANA VS. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2007) 11 NWLR (pt. 1044) 59 and ASIYANBI & OR VS. ADENIJI (1966) NMLR 16.

The question now is whether the finding of the Trial Judge on Exhibits K.S.U and Q can be categorized as a slip.
The trial Judge at page 415 of the Record held as follows:
“On the other hand the 4th – 8th Defendants claimed to have derived their title from the 1st Defendant’s mother in their pleadings and evidence as contained in Exhibits K.S.U and Q, the purchase receipts which are title documents relied upon. The claimants persistently denied the title

documents which the Defendants relied upon.”
He went on at page 416 to hold as follows:
“Also the Claimant’s Counsel at the trial vide Exhibit U the signature of the 1st Defendant was able to show that Exhibit U the purchase receipt issued to the 8th Defendant was signed by the 1st Defendant since the signature on Exhibit P is the same with the one in Exhibit U under the column of head of family. This gives credence to the fact that 1st Defendant sold their land in dispute to 4th – 8th Defendants as against their evidence that they bought from Amoke Ganiyu, the 1st Defendant’s mother.”

The Trial Judge found that the Defendants had consistently denied the title documents relied upon by the Appellants. He pronounced on the validity of Exhibits K.S.U and Q. The law is trite that the validity of a document may be challenged only if it has been put in issue in the pleadings of the parties. See ADEOSUN VS. GOVERNOR OF EKITI STATE & ORS (2012) 4 NWLR (pt. 1291) 581 at 606 paras F-G, where ONNOGHEN JSC held thus:
“While it may be the law that a party “can invite the Court at any stage of the

proceedings to determine the validity of any legal document that will be used in the course of the proceedings, “the invitation would be proper only if the legal document is put in issue in the pleadings of the parties before the Court. If not, the invitation is of no moment, as in this case.”

From a careful perusal of the pleadings of parties before the Lower Court, there is no where the validity of Exhibits K.S.U and Q was put in issue. Parties did not join issues on it. Learned Counsel to the Respondents conceded this point. The Lower Court cannot therefore be called upon to determine the validity of the said documents as it was asked to do and it did when it compared a specimen signature made by the 1st Appellant. The specimen signature is Exhibit P. The need to ask for Exhibit P did not arise. The finding of the trial Judge on Exhibit K.S.U and Q cannot by any stretch of imagination be held to be a slip. It is one based on evidence adduced without any basis having regard to the pleadings before the Court and I so hold.

The next question now is whether the error of the Learned Judge occasioned such miscarriage of justice to warrant

the setting aside of the judgment.

The term “miscarriage of justice” has been variously defined. It is a substantial wrong which occurs during a trial which so affects the proceeding so as to merit quashing the result. It is a wrong decision made by a court as a result of which an innocent person is punished. It is a grossly unfair outcome in a judicial proceeding. It is a failure of a Court or judicial system to attain the end of justice.
A miscarriage of justice is also said to have occurred in a situation where if such a finding had not been made by the Court there is a reasonable probability that a party would have got a more favourable outcome. It would also be said to have occurred where in the course of a proceeding the goal post was shifted to the detriment of one of the parties. It is however the law that for a miscarriage of justice to result in the reversal of a decision, it must be such that after the examination of the entire case including the evidence, the Appellate Court is of the opinion that it is reasonably probable that a result more favourable to the Appellant would have been reached in the absence of the error by the

Trial Court. See LARMIE VS. DATA PROCEESING MAINTENANCE AND SERVICES LIMITED (2005) 18 NWLR (PT. 958) 438; KRAUS THOMPSON ORGANISATION LTD. VS. UNIVERSITY OF CALABAR (2004) 9 NWLR (PT. 879) 631; GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282 and AIGBOBAHI VS. AIFUWA 2006) 6 NWLR (PT. 976) 270.

In the resolution of issue No. 2, I found the Trial Judge was right when he held that the Appellant made inconsistent claims on their root of title. It can thus be clearly inferred that the Trial Judge would not have arrived at a decision favourable to the Appellants with or without the findings on Exhibits K.S.U and Q. There is therefore no miscarriage of justice to justify the interference with the conclusions of the learned trial Judge. Issue Nos. 4 is resolved in favour of the Respondents.

ISSUE NO. 5
Whether the Lower Court was right in granting the claims of the Respondents.

Learned Counsel to the Appellants submitted that in a claim of declaration of title to land, the Claimant must succeed on the strength of his own case and not on the weakness of the Defendant. His case must not be based on the admission in the Defendant’s pleading.

See KODILINYE VS. ODU (1935) 2 WACA 336 at 337, OKE VS. EKE (1982) 12 SC 218 at 222 and AROMIRE VS. AWOYEMI (1972) 2 SC.

He submitted that the Respondents who did not prove the root of their title to the disputed land was not entitled to judgment and urged us to so hold.

Arguing per contra Learned Counsel for the Respondents reiterated the position of the law on the methods of proving ownership to land. He relied on the cases of ALLI VS. ALESINLOYE (2000) 6 NWLR (pt. 660) 177 at 201 – 202 paras G-B and ATANDA VS. AJANI (1989) 3 NWLR (pt. 111) 511 at 533 paras B-D.

He referred us to relevant paragraphs of the statement of claim filed by the Respondents to submit that the Respondents relied on grant as the method to establish their title and it follows therefore that the question of who founded the land and how it was founded were unnecessary. He argued that the issue in contention was who among the warring vendors had the right to grant the land in dispute. He urged us to resolve this issue in favour of the Respondents.

The Respondents as Claimants at the Lower Court sought amongst others a declaration that the Appellants are the

owners/holders and persons entitled to statutory right of occupancy over and in respect of all that piece or parcel of land.

A party who seeks declaration of title to land may prove same by any of the following five methods:
1) By traditional evidence.
2) By production of document of title.
3) By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner of the land.
4) Long possession.
5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land.

The Respondents pleaded their root of title by grant from the Ezekiel Bankole Dada family of the Ogisanrin Osan family. They pleaded the family history of how the land was acquired and gave evidence thereon. The Appellants in their statement of defence did

not deny the family history pleaded by the Respondents. Parties did not join issues on the family history of the Ogisanrin Osan family. It is trite that in a case tried on the pleadings an issue will only arise for trial where it is positively denied by the other party. See LEWIS AND PEAT (N.I.R.) LTD. VS. AKHIMIEN (1976) 1 ALLNLR 460, DALEK VS. OMPADEC (2007) 7 NWLR (PT. 1033) 402; NWADIOGBU VS. NNADOZIE (2001) 12 NWLR (pt. 727) 315 and EDJEKPO VS. OSIA (2007) 8 NWLR (pt. 1037) 635.

It is my view that in the present circumstance all that is required of the Respondents is minimal proof of their vendors came to own the land. The Respondents discharged this burden at the lower Court and I so hold. They pleaded and proved the origin of their vendor’s title. There is evidence on record that the Ogisanrin Osan family land was partitioned and that Ezekiel Bankole Dada family, a branch of the family got part of the partitioned land. The vendor of the Respondent is the Ezekiel Bankole Dada family. The Respondents further relied on certificates of occupancy with plan LUD GLRA 5827 – 5931 (Exhibits H – H4) as further proof of their title to the

disputed land.

On the other hand, the Appellants gave inconsistent evidence on their root of title. The law is settled that a party has a duty to be consistent in his case. A party should not be allowed to blow hot and cold in the same proceeding. See COUNTY AND CITY BRICKS DEVELOPMENT COMPANY LIMITED VS. MINISTER ENVIRONEMENT; HOUSING AND URBAN DEVELOPMENT & ANOR (2019) 5 NWLR (pt. 1666) 484; SALISU VS. MOBOLAJI (2016) 15 NWLR (pt. 1535) 242 and PINA VS. MAI-ANGWA (2018) 15 NWLR (pt. 1643) 431 at 442 para B.

The Learned Trial Judge at page 416 of the Record held thus:
“In view of the contradiction and inconsistency in the evidence of the 4th – 8th Defendants as to their title, I prefer the evidence of title given by the 6th Claimant in respect of the land in dispute to that of the Defendants. It is the law that a Claimant must succeed on the strength of his own case notwithstanding the weakness of the Defendants’ case. See AREMU VS. ADETORO (2007) 16 NWLR (pt. 1060) 244 at 256. The Claimants have proved their title to the land in dispute on balance of probability. See ASHIRU VS. OLUKOGA (2006) 11 NWLR (PT. 990) 1.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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It is also on record that the Respondents were put in possession and they exercised acts of possession. The Learned Trial Judge was therefore right when he held that the Respondents were entitled to damages for trespass.
In all, this issue is also resolved in favour of the Respondents and against the Appellants.

In conclusion, having resolved all issues in favour of the Respondents, it follows that this appeal lacks merit and it is hereby dismissed. I affirm the decision of the Ogun State High Court sitting in Ota Judicial Division in SUIT NO. HCT/361/2006 delivered on 7th July 2015.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, FOLASADE AYODEJI OJO, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me.
I abide by the consequential order made in the said lead Judgment.

NONYEREM OKORONKWO, J.C.A.: I have carefully read the draft of the judgment by my Lord, Folasade Ayodeji Ojo JCA on all the issues raised for determination.

The lead judgment has demonstrated a clear, lucid and

dispassionate consideration of all issues raised by the parties. I agree with the resolution of all issues and the eventual dismissal of the appeal.

Appearances:

T. OSENI ESQ. For Appellant(s)

O. FOLORUNSHO ESQ. with him, O. A. MORIOUNTONU For Respondent(s)