JOHN ONISILE v. OJO APO
(2013)LCN/6665(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of December, 2013
CA/EK/01/2012
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
JOHN ONISILE
(For himself and behalf of Onisile Family) Appellant(s)
AND
OJO APO Respondent(s)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN SUBSTITUTE ITS OWN VIEWS FOR THAT OF THE TRIAL COURT
Evaluation of evidence is the fulcrum of this appeal. This court is called upon in this appeal to determine whether the lower court rightly evaluated the evidence placed before it by the parties. I believe it to be the law that facts on any issue in a court case are assessed and evaluated by holding the evidence called by both sides to the conflict on the issue on either side of an imaginary balance and weighing them together whichever outweighs the other ought to be accepted. It is well settled that if the court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. PER AKINBAMI, J.C.A.
WHETHER OR NOT THE FINDING OF PRIMARY FACTS IS THE PRIMARY DUTY OF THE TRIAL COURT
Findings on primary facts are matters within the province of the Court of trial and there is a rebuttable presumption that a Judges’ findings and conclusions on the facts are correct. Evaluation of evidence involves the assessment of evidence so as to give value or quality to it, and there must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – See Alake v. State (1992) 9 NWLR (Pt.265). PER AKINBAMI, J.C.A.
WHETHER OR NOT A FAMILY IS A LEGAL PERSON KNOWN TO LAW AND CAN GRANT LAND TO A PERSON
A family is not a legal person known to law and cannot grant or alienate land to a person. See case of Adeagbo v. Williams (1998) 2 NWLR (Pt. 536) 120 at 126 D-F.
It is noted that the appellant could not have been granted the same land by two families at the same time the Ayawa family on one hand and Aaye-Ayinrin family on the other hand. Evidence at variance with pleadings is not admissible. See Ojo Adebayo v. Mrs. F. Ighodalo (1996) 5 SCN 5 P23.
A party claiming title to land who relies on evidence or tradition history must plead and establish such facts as
(a) Who founded the land and
(b) How he founded the land
(c) The particulars of the intervening owners through whom he claims i.e. the succession of inheritance up to the Plaintiff.
Such fact and evidence must be cogent, credible, constant, consistent, compelling, persistent, reliable and un-contradicted since evidence that is not consistent but has discrepancies cannot sustain an action for declaration of title to land. See Aliko v. Ugwu (2010) 5 NWLR (Pt.1187) 281; Nwokorobia v. Ninoga (2009) 10 NWLR (Pt. 1150) page 553 at 573 H. PER AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A.: (Delivering the Leading Judgment): The Appellant herein filed his Writ of Summons and Statement of Claim on the 19th of January, 2006. An amended Writ of Summons and Statement of Claim were subsequently filed on the 14th December, 2006 with the following reliefs namely:
(i) A declaration that the Plaintiff and his Onisile family are entitled to a right of occupancy of the said Itagba Elebe farm in dispute.
(ii) The sum of Three Million Naira (N3,000,000.00) being special and general damages for the continuous trespass to the Plaintiffs family farmland, lying and situate at Itagba-Elebe farm, along Aramoko Road, Ijero Ekiti.
(iii) Perpetual injunction, restraining the Defendant, his agents, privies and servants from entering the Itagba-Elebe farm land, property of the Plaintiff and his family.
The Respondent as Defendant at the lower Court with the leave of Court filed a further Amended Statement of Defence and Counter-Claim dated 27th January, 2009 filed on the 28th of January 2009 with the following reliefs namely:
(i) A declaration that the Elebe family farm belongs to the Defendants family (Dada Apo family).
(ii) A perpetual injunction restraining the plaintiff and or any member of Onisile family from further trespass of on the Elebe farmland.
(iii) The sum of Five Million Naira (N5,000,000.00) being general damages for the plaintiffs trespass on the farm.
The Appellant filed an Amended Reply to Statement of Defence and Amended Defence to the Defendant’s Counter-Claim on 4th February, 2009, with the leave of Court parties having fully exchanged pleadings, the suit was set down for trial.
The Appellant gave evidence as PW1 and called 4 additional witnesses who gave evidence as PW2, PW3, PW4 and PW5 respectively and said that the Appellant is the owner of the land.
The Respondent also gave evidence and called 3 additional witnesses who gave evidence as DW2, DW3 and DW4 respectively and asserted that Respondent’s great grandfather founded the land.
At the close of evidence, written addresses were ordered and exchanged.
The learned trial Judge delivered judgment on the 30th November, 2010 and dismissed Appellant’s case, while granting the Counter-Claim of the Respondent.
The Appellant being dissatisfied, by the judgment of the learned trial judge, consequent upon which he filed a Notice of Appeal against the said judgment on the 17th of March, 2011 but amended same on the 17th of October, 2012. The Amended Notice of Appeal contains seven (7) grounds of appeal. The grounds of appeal are:
(1) The trial Court erred in law in holding that “Having gone through the evidence before me, I find as a fact that Amoke-Okojongo was the founder of the land in dispute. That Ojo-Aboko-Oliri inherited the land from Amoke-Okojongo his father Abokololorobejo Apo”.
When Plaintiff strictly proved traditional history.
(2) The trial Court erred in law in holding that:
“the Plaintiff’s grandfather Omosolu was not a native of Ijero but Usi. The Defendant’s are related to this land because their grandfather was the only male child of Apo. The same Apo begat the grandmother of the Plaintiff Ojo Olofinkemi”.
And this led to a miscarriage of Justice.
(3) The trial Court erred in law in holding that:
“I disbelieve the evidence of the Plaintiff that the land was given by Aba-Ojo-Ajaja to Olofinkemi”.
(a) The disbelief of the Judge on the evidence of the Plaintiff was premised on the evidence of DW3 who even admitted that the Plaintiffs are entitled to the land in dispute.
(b) The trial Court wrongly held that the land in dispute was not granted to Aba-Ojo-Ajaja
(4) The trial Judge erred in law in holding that “I am of the view that the Plaintiff whose grandfather was from Usi and whose grandmother was born by Apo cannot be claiming a better title than the male children of Apo family”.
And this led to a miscarriage of justice.
(5) The trial Court erred in holding that
“The Plaintiff to my mind has not been able to show evidence of better title to the land in dispute and cannot say that the Defendants who are the bonafide owners of the land are trespasses”.
And this led to a miscarriage of justice.
(6) Error in law
The learned trial Judge failed to evaluate and/or properly evaluate the totality of the evidence before him, thus arriving at wrong conclusions leading to a grave miscarriage of justice.
(7) The decision of the trial Court is against the weight of evidence.
Mr. Obafemi Adewale, learned counsel for the Appellant who settled the Appellant’s Brief of Argument formulated three (3) issues for determination of this appeal as follows:
(1) Whether the judgment was not against the weight of evidence (issue one is formulated from ground 7).
(2) Whether the trial court evaluated the evidence before it properly. (Issue two is formulated from grounds 1, 2, 3, 4 and 5).
(3) Whether the failure of the learned trial Judge to carry out a proper evaluation of the evidence before him did not result in wrong conclusion thereby occasioning a miscarriage of justice.
(Issue three flows from Ground 6).
At the hearing of this appeal on the 24th of October, 2013, Mr. Taiwo Martins Ogunmoroti Respondent’s counsel, sought the leave of the Court to argue the Preliminary Objection he filed, in his Respondent’s Brief of Argument. The Court granted his application.
The Preliminary Objection is argued at pages 2-6 of the Respondent’s Brief filed on the 1st of July 2013. Learned Counsel adopted the Brief and thereafter urged this Court to dismiss this appeal.
Appellant’s counsel referred to their response to the Preliminary Objection in their Reply Brief of Argument on pages 2-6 of their brief dated 22nd October, 2013 filed 22nd October, 2013 deemed properly filed on the 24th October, 2013. He prayed the Court to overrule the Preliminary Objection as being unmeritorious.
Appellant’s Counsel for this appeal relied on the further Amended Appellant’s Brief of Argument dated the 3rd June, 2013 filed 3rd June, 2013 deemed properly filed 10th June , 2013 as well as Appellant’s Reply Brief dated 22nd October, 2013 filed 22nd October, 2013 and deemed properly filed 24th October, 2013.
Learned Counsel adopted and relied on the two briefs as their argument in this appeal. He urged the Court to resolve the three issues formulated at page 2 of the further Amended Appellant’s brief in favour of the Appellant to uphold the appeal, and grant all the reliefs sought by the Appellant. Consequently he urged the Court to allow the appeal.
Mr. Ogunmoroti for the Respondent referred to the earlier adopted arguments on Preliminary Objection. He adopted Respondent’s Brief of Argument in opposition to the Appellant’s Brief of Argument. He adopted Respondent’s Brief filed on 1st July, 2013 and relied on same as argument in respect of the appeal. In the Respondent’s brief two issues were formulated in respect of this appeal. He urged this Court to dismiss this appeal as lacing in merit.
It is settled law that wherever Preliminary Objection is raised on appeal, an Appeal Court is duty bound to resolve it first before disposing of the appeal before it on the merit. It is on that back drop that I deem it necessary to deal with the Preliminary Objection first, before considering the issues raised in the appeal if need be. In doing so, I shall treat the Preliminary Objection raised by the 1st Respondent as regards the seven grounds of appeal.
The learned Respondent’s Counsel in his Brief of Argument on preliminary object:
(a) Challenged the jurisdiction of this court to hear and determine the present appeal.
(b) The grounds of the Preliminary objection are as follows:
(i) Ground 7 of the Appellant’s ground of appeal is an omnibus ground of appeal which is a ground of fact.
(ii) Issue one formulated by the Appellant has to do with judgment being against the weight of evidence.
(iii) Appeal against the weight of evidence does not raise the question of law, or mixed law and fact but fact simpliciter.
(iv) Omnibus ground of appeal cannot sustain issues of law or mixed law and facts.
(v) The case of ANYAWU v. UZOWUAKA (SUPRA) has to do with evaluation of evidence.
(vi) Issue two formulated by Appellant from where grounds 1, 2, 3, 4 and 5 emanate from has to do with evaluation of evidence.
(vii) Issue three formulated by Appellant from where ground 6 emanates from has to do with evaluation of evidence.
(viii) Appellant gave no particulars in ground 6 of his amended notice of appeal.
(ix) Ground 6 of the appellant’s amended notice of appeal is wide, general, vague, uncertain, shaking and at large.
(x) Grounds 1, 2, 3, 4, 5, 6 and 7 of Appellant’s notice of appeal have no legs upon which to stand.
(xi) The Appellant’s appeal is incompetent and the Court lacks jurisdiction to entertain same.
Respondent’s Counsel in his Preliminary Objection formulated two issues for determination rather than attacking the grounds of appeal which is what he should address in his Preliminary objection.
It is noted that the learned respondent’s counsel ought to raise preliminary objection on the grounds of appeal before replying to the issues for determination argued in the main appeal. He cited in this regard the case of Anyawu v. Uzowuaka (2009) 13 NWLR (Pt.1159) 445.
Learned Counsel’s argument vis-a-vis issue two for determination, was inelegantly couched. He referred to issue as being formulated by appellant from where grounds 1, 2, 3, 4 and 5 emanated. It is noted that issues are formulated from grounds of appeal not vice versa.
Most importantly the learned respondent’s counsel did not reproduce the grounds of appeal he is attacking. The procedure adopted by learned counsel for presentation of his preliminary objection is contrary to the applicable Rules of Court. In the circumstance the preliminary objection is overruled.
At this juncture I will give some background facts that led to this appeal. This is an appeal against the decision of the Ekiti State High Court Sitting at Ijero Ekiti Judicial Division delivered on the 3rd day of February, 2011 dismissing the Appellant’s Claims earlier reproduced in this judgment, and declaring that the Elebe farm, subject matter of this suit belongs to the Respondent’s Dada Apo family. The Court also awarded the sum of one Hundred Thousand Naira (N100,000.00) only as general damages against the Appellant and in favour of the Respondent, and made an order perpetually restraining the Appellant and his family from further trespassing on the Elebe farmland.
The appellant’s case was that they were descendants and grand children of Madam Oja-Olofinkemi who originally owned the Elebe farmland vide a grant from her father, Aba-Oja-Ajaja alias Agesin-bi-Oloro.
The Respondent’s senior brother Olatunde Apo was a customary tenant on the land from 1968 paying royalty of two basketful of kola nuts or their money’s worth yearly to the Appellant’s family until, Olatunde Apo died in 1982.
After the Respondent’s brother died in 1982, nobody from the Respondent’s family came to the land until 2003 when the Respondent entered the farmland without notice, permission and/or consent of the Plaintiffs family and started engaging in deforestation, destroying the economic crops with total impunity under the guise of harvesting his late brother’s cash crops. With time the Respondent, started laying claim of ownership over the farmland.
The Appellant’s family becoming apprehensive and irritated about the activities of the Respondent on the Elebe farmland took out a Writ of Summons dated and filed 19th January, 2004 whereof the Appellant claimed against the Respondent as I had already reproduced in this judgment.
Pleadings were exchanged and the matter subsequently went into hearing. After parties had closed their cases, the Court ordered that written addresses be exchanged and which order was complied with page 71, 88, 89, 98 of the records.
In the judgment delivered on Monday 3rd February, 2011 the trial Court dismissed the Appellant’s claim, declared that the Elebe farm belonged to the Respondent’s family, the Dada Apo family and awarded sum of (One hundred thousand Naira) as general damages. The Court further made an order perpetually restraining the Appellant from further trespassing on the Elebe farmland.
Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal on pages 165 – 168 of the records predicated on six (6) grounds of appeal. The Notice of Appeal was amended by Order of Court granted on 7th November, 2012 to include an additional ground of appeal bringing the total number of grounds of appeal to seven.
The appellants formulated three issues for determination:
(1) Whether the judgment was not against the weight of evidence.
(2) Whether the trial Court evaluated the evidence before it properly.
(3) Whether the failure of the learned trial judge to carry out a proper evaluation of the evidence before him did not result in wrong conclusions thereby occasioning a miscarriage of justice.
Mr. Obafemi Adewale on behalf of the appellant submitted that the learned trial judge failed to carry out a proper evaluation of the evidence proffered in this case and the failure led the Court to making wrong conclusions which has resulted in a miscarriage of Justice. Learned appellant’s counsel drew the Court’s attention to the fact that the Appellant never claimed that OJA-OLOFINKEMI owned the land by inheritance. The claim on the Statement of Claim and amply supported by credible evidence was that Oja-Olofinkemi was given a grant of the land by Aba-Oja-Ajaja when her brother Aba-Oja-Ajayi, whose children ordinarily would have inherited the land (as he had the original grant) died young without any issues. Since the grant was made to Oja-Olofinkemi by her father Aba-Oja-Ajaja, the herbalist (who begat Ajayi) in his lifetime there is no basis for his Lordship’s conclusion that Oja-Olofinkemi’s children cannot claim ownership.
Learned appellant’s counsel contended that inheritance is one of the ways but not the only way of acquiring title to land in Yoruba land. A grant of land can also be validly made and be as good a root of title as any other if properly proved as has been done in this case. He cited in aid the case of Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332: Atanda v. Ajani (1989) 3 NWLR (Pt.111) 531: Alade v. Lawrence Awo (1975) 456 215; Odofin v. Ayoola (1984) 15 M SCC 711.
Appellant’s Counsel surmised that appellant pleaded facts and led credible traditional evidence enough to prove the case in support of the grant to Oja-Olofinkemi see paragraphs 5, 8, 9, 10, 11, 12, 13, 14 of the amended Statement of Claim at pages 35 – 36 of the record of appeal.
Learned Counsel also referred to the unchallenged evidence of PW1, PW5, PW6.
Appellant’s Counsel stated that the learned trial judge did not state why he disbelieved the Appellant’s narration of their family tree but preferred the concocted story of the Respondent, which only sought to graft themselves into Oja-Olofinkemi a barrier they could not find a way round.
In his further submissions appellant’s counsel referred to the Magistrate Court Ruling, that it is normal because a Magistrate Court has no jurisdiction to try land matters. Evidence on these, relevant in establishing that the Appellant who was in effective physical possession as at 2003 resisted the Respondent’s act of aggression and trespass and only resorted to filing an action, when other efforts to check the aggression failed. It is the view of learned appellant’s counsel that his lordship at the lower Court did not take cognizance of these facts before arriving at his conclusion that the Appellant was a trespasser who ought to be restrained from ever entering the land again.
On the judgment of Ajero-in-Council, learned appellant’s counsel submitted that customary arbitration cannot be a bar to litigation in a competent Court, if a litigant is not satisfied with the outcome of the arbitration and intervention. In aid he cited the case of Nwannewunte v. Nwanrewunte (2 – 7) 16 NWLR (Pt.1059) 1 per Rhodes Vivour, JCA as he then was that the five ingredients must be pleaded and established by a party relying on customary arbitration. Learned counsel noted that Appellant did not submit voluntary or at all to the exercise in the Ajero’s Palace and he did not accept the decision.
The appellant consequently argued that he was not granted fair hearing at Ajero’s Court. Learned appellant’s counsel pointed out that Ajero’s Court the traditional Court is an inferior court whose decision cannot act as estoppel to bar the Appellant and his family from seeking further adjudication on their grievances before a competent court of law, as they have done in this case, particularly as the appellant has refused to that jurisdiction and expressed his disagreement with the decision.
Learned Counsel referred to Section 272 (2) of the 1999 Constitution (as amended) and argued that from the totality of the evidence placed before the trial Court it is clear that the Appellant did not subject himself to the Ajero Palace trial intervention, and cannot be bound by its judgment/opinion from instituting these proceedings in the exercising of the constitutional right to fair adjudication of his family’s grievances as guaranteed by Section 36 and 272 of the 1999 constitution of the Federal Republic of Nigeria (as amended).
Learned Counsel further submitted that the Appellant has not only proffered traditional evidence in this case, he has also proved acts of ownership and long possession that should entitle him and his family to the declaration of title.
Appellant’s Counsel further argued that the learned trial Judge’s failure to evaluate or properly evaluate every piece of evidence proffered in Court before arriving at a decision is fatal on the part of the Judge. Every judgment/decision must have a basis clearly stated and discernable on the face of the judgment. That the Court is an intervener.
The Court has a duty to set out any case otherwise the intervention will capricious. That in the instant case the Court intervened to set aside the claim and evidence of the Appellant without stating the grounds for doing so, and this is erroneous.
On the survey plan the learned appellant’s counsel drew this Court’s attention to the fact that it was pleaded and tendered. That it cannot therefore be said to have been made in contemplation of this action. The Respondent did not tender any survey plan. He did not attack the one tendered by the Appellant.
His Lordship did not consider it necessary to evaluate this very important document and piece of evidence. That this has resulted in miscarriage of justice. Appellant’s counsel contended therefore that the learned trial judge did not properly evaluate the evidence before the Court and has resulted in a miscarriage of justice. In aid learned counsel cited the case of Odofin v. Mogaji & Ors (1978) 3 SC 91.
The contention of the learned Appellant’s counsel is that if his Lordship had properly put the evidence proffered by the parties on the scale of justice, the evidence of the Appellant would have far outweighed that of the Respondent. Therefore the failure of the learned trial Judge to use the available scale has resulted in a miscarriage of justice.
He urged this Court to remedy the situation and resolve these issues in favour of the appellant. He prayed this Court to allow this appeal by nullifying and setting aside the Judgment of the trial Court delivered on the 3rd February, 2011. Dismiss the counter claim of the Respondent. Grant all the reliefs sought by the Appellant and his family.
Respondent’s Counsel captioned his argument on the appeal in the alternative Argument and Submissions. This ought not to be so captioned. In that it is his argument, in the circumstance that his preliminary objection is not upheld.
Learned Respondents Counsel in his brief referred to the extant pleadings in this suit. He formulated two issues for the determination of this appeal:
(a) Whether from the totality of the evidence on record, the trial judge was right to dismiss the claim of the Appellant while granting the counter-claim of the Respondent or whether the judgment of the trial court is against the weight of evidence.
(b) Whether the learned trial judge did not properly evaluate the evidence before him.
On the issue whether the decision of the learned trial judge dismissing appellant’s claim while granting the counter-claim, learned Respondent’s counsel put it simply that the judgment of the learned trial Judge is not against the weight of evidence and that where the decision of a Court of law is supported by evidence on record the appellate court will not disturb such findings.
He cited in aid the case of Orunengimo v. Egebe (2003) 2 NWLR (Pt.803) 61, Arowolo v. Olowokere (2011) 18 NWLR (Pt.278) 280.
Supreme Court has held that what an appellate Court is required to do is simply to find out from the records whether there is evidence on which the trial court could have acted or on which its findings are based. Once that is achieved, the appellate court cannot interfere with the decision of the trial court.
He referred to DW1 and DW4’s evidence that their evidence is supported by paragraphs 21, 24, 27, 28, 29 30 of the further Amended Statement of defence and Counter-Claim. Learned counsel contended that the learned trial Judge acted both on the pleadings and the evidence of DW1 and DW4 which he preferred to the evidence of the Appellant and his witnesses before arriving at the finding that culminated into the grounds of appellant’s appeal.
The learned trial Judge stated:
“As I have held earlier this evidence of the defendant’s witnesses are more plausible and point to the actual owners of the land by inheritance”.
Learned Counsel urged this Court not to dismiss the judgment or findings of the learned trial Judge since the said judgment or findings is not perverse but is supported both by the pleadings and the evidence on record. See Adejola v. Bolarinwa (2011) 12 NWLR (Pt. 1262) 280.
The five ways of proving or establishing title to land was enunciated by learned respondent’s counsel. Learned counsel submitted that the traditional evidence of the Appellant is unreliable and is contradicting his own pleadings. Learned Respondent’s Counsel pointed out the contradictions in the evidence of PW1 and PW3. That the Appellant created confusion in his own case. And that where a plaintiff fails to discharge the burden of proving his root of title to the land as pleaded by him, he is not entitled to the declaration sought nor can he rely on acts of long possession to claim title see Owhonda v. Ekpechi (2003) 17 NWLR (849) 326.
The Respondent’s counsel argued that the Appellant having failed to discharge the burden of proof by traditional evidence cannot revert to acts of long possession or any act at all see Adeniran v. Asadi (2004) 2 NWLR (Pt.857) 375.
The Respondent’s Counsel reiterated the point that the appellant attempted to say that he has been on the land for a long time granted to him by the Ayawe family on one hand and Aaye-Ayinrin family on the other hand. Such argument cannot hold in view of the contradiction and conflicting nature of the traditional history of the Appellant, because two different families cannot have ownership of the same piece of land at the same time. In any case possession however long cannot ripen into title Alufe v. Oghomunor (2004) 13 NWLR (Pt.890) 327.
Respondent’s learned counsel printed out the fact that the appellant did not call any of the boundary men. The Aaye-Ayinrin family his purported grantor was never called to give evidence. The Respondent’s counsel contended that the Respondent’s evidence was not challenged under cross-examination.
Evaluation of evidence is the fulcrum of this appeal. This court is called upon in this appeal to determine whether the lower court rightly evaluated the evidence placed before it by the parties. I believe it to be the law that facts on any issue in a court case are assessed and evaluated by holding the evidence called by both sides to the conflict on the issue on either side of an imaginary balance and weighing them together whichever outweighs the other ought to be accepted. It is well settled that if the court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court.
It is no doubt the law that where possession is doubtful or equivocal the law attaches it to title.
It is the duty of the trial court to assess witnesses, form impressions about them and evaluate their evidence in the light of the impression which the court forms of them.
The learned trial Judge in his judgment on page 162 of the record of appeal stated thus:
“Having gone through the evidence before me, I find as a fact that Amoke-Okojongo was the founder of the land in dispute. That Oja-Aboko-Oliri inherited the land from Amoke-Okojongo’s father, Aboko biolorobejo Apo. That the grandfather of the plaintiff was born by Oja Olofinkemi who was a female child of Apo. That Apo had only one male child who begat the grandfather of the defendant. The plaintiff’s grandfather Omosolu was not a native of Ijero but Ushi. The defendants are related to this land because their grandfather was the only male child of Apo. The same Apo begat the grandmother of the plaintiff Ojo-Olofinkemi”.
Findings on primary facts are matters within the province of the Court of trial and there is a rebuttable presumption that a Judges’ findings and conclusions on the facts are correct.
Evaluation of evidence involves the assessment of evidence so as to give value or quality to it, and there must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – See Alake v. State (1992) 9 NWLR (Pt.265).
It is only where a trial Judge fails to properly examine and evaluate the evidence before the Court that the duty of an appellate Court to interfere with any improper findings or correct any erroneous conclusions will come into play.
I will examine the evidence placed before the trial Court by the Appellant. In proving his title by traditional evidence the Appellant pleaded in paragraph 5, 10, 11, 12 and 14 of the amended statement of claim filed on 14th December, 2006 as follows:
Paragraph 5:
“Plaintiff avers that the land originally belonged to Aaye-Ayinrin family of Ijero-Ekiti who gave it to Aba-Oja-Ajaja the great founder of Ojo-Iwaro family of Ijero-Ekiti for helping in solving the family problem”.
Paragraph 10:
“Plaintiff says further that Ojo-Ajaja gave the land to his son Aba-Oja-Ajayi being the only son from his three wives while other children are females”.
Paragraph 12:
“Plaintiff says that Aba-Oja-Ajayi died of small pox four years after taking possession of the said land and his junior sister, Oja-Olofinkemi took possession of the land since there was no male child”.
Paragraph 14:
“Plaintiff says that when Ojo-Onishile grew up as a young man he started to farm on the royal family farm at Itagba. But after the military hostilities between Ekiti and Ibadan which ended in 1986, Oja-Olofinkemi advised her son Ojo-Onishile to come and start farming with her on the piece of land she inherited from her brother which was still a virgin piece of land with thick forest.
PW1 the Appellant gave evidence as follows:
“The land was originally owned by Ayawa family, a stock of Oshomega family of Ijero… the Aaye-Ayinrin and his family… handed over the land to the said son whose name was Aba-oja-Ajayi. Aba-Ajayi died after a few years before he got married and so he had no issue, his father then handed over the land to Ajayi’s immediate sister known as Oja-Olofinkemi. My grand mother Oja-Olofinkemi died in 1942 and my father Ojo Onishile inherited the land from my grandmother when my father died in 1968, we inherited the land as his children”.
PW3 gave evidence as follows:
“The land was owned by Ayi-Ayimi who gave to Abaoja-Ajaja… Aba-Oja-Ajaja gave the land to Oja-Olofinkemi who begat Ojo-Onishile.
PW4 gave evidence as follows:
“What I can say is that…. it was the plaintiff who gave me the place for farming, but I will not know who owns the land out of the two parties I never paid anything to the Onishile the plaintiff family I cannot say how the plaintiff got the land….. I do not know any Oja-Olofinkemi……”
PW5 gave evidence under cross examination as follows:
“I cannot say who owns the land but I know that it was the plaintiff who gave me the land”.
It is noted that the Appellant’s pleadings in paragraph of the Amended Statement of Claim says that the land originally belonged to the Aaye-Ayinrin family of Ijero-Ekiti, the evidence of the Appellant himself stated that the land was originally owned by Ayawa family. While paragraph 14 of Appellant’s Statement of Claim states Oja-Olofinkemi inherited the land from her brother, his evidence states that the land was given to her by Aba-Oja-Ajayi who died, yet PW4 and PW5 do not know who owns the land.
A family is not a legal person known to law and cannot grant or alienate land to a person. See case of Adeagbo v. Williams (1998) 2 NWLR (Pt. 536) 120 at 126 D-F.
It is noted that the appellant could not have been granted the same land by two families at the same time the Ayawa family on one hand and Aaye-Ayinrin family on the other hand. Evidence at variance with pleadings is not admissible. See Ojo Adebayo v. Mrs. F. Ighodalo (1996) 5 SCN 5 P23.
A party claiming title to land who relies on evidence or tradition history must plead and establish such facts as
(a) Who founded the land and
(b) How he founded the land
(c) The particulars of the intervening owners through whom he claims i.e. the succession of inheritance up to the Plaintiff.
Such fact and evidence must be cogent, credible, constant, consistent, compelling, persistent, reliable and un-contradicted since evidence that is not consistent but has discrepancies cannot sustain an action for declaration of title to land. See Aliko v. Ugwu (2010) 5 NWLR (Pt.1187) 281; Nwokorobia v. Ninoga (2009) 10 NWLR (Pt. 1150) page 553 at 573 H.
In his evidence PW1 stated that it was the Aaye-Ayinrin family that handed over the land to Aba-oja-Ajayi, PW3 on the contrary stated that the land was owned by Aaye-Ayinrin and it was Aaye-Ayinrin that gave the land to Aba-oja-Ajaja who gave same to Oja-Olofinkemi. The above evidence is contradictory. Consequent upon finding the above evidence contradictory, the learned trial Judge rightly held in his Judgment as follows:
“I disbelief the evidence of the plaintiff that the land was given by Aba-Oja-Ajaja to Olofinkemi”.
From the evidence proffered by the Appellant, there is confusion as far as the founder and the intervening owners are. Where a plaintiff fails to discharge the burden of proving his root-of-title to the land as pleaded by him, he is not entitled to the declaration sought nor can he rely on acts of long possession to claim title see Owhonda v. Ekpechi (2003) 17 NWLR (Pt.849) 326. Where the Supreme Court held as follows:
“There is no doubt that it is the law, that in action for declaration for title to land, where a plaintiff fails, to discharge the burden of proving his root of title to the land as pleaded by him, he cannot also fall back on long possession and acts of ownership to prove title. He must first prove a valid root of title to be able to claim title or acts of ownership or long possession. See Kalio v. Woluchem (1985) 1 NWLR (Pt.4) 610”.
The appellant having failed to discharge the burden of proof by traditional evidence cannot revert to acts of long possession or any act at all and I so hold. See case of Adeniran v. Ashabi (2004) 2 NWLR (Pt.857) 375.
The appellant attempted to state that he had been on the land for a long time and it was granted to him by the Ayawa family on the one hand and the Aaye-Ayinrin family on the other hand. Such an argument cannot hold water in view of the contradictory and conflicting nature of the traditional history of the Appellant because two different families cannot be owners of the same piece of land at the same time and in any case, possession however long cannot ripen into title. See Alufe v. Oghomlena (2004) 13 NWLR (Pt.890) 327.
PW1 gave evidence of the boundaries as follows:
“The boundaries of the land are as follows on the Eastern part or side of the land is the Aaye-Ayinrin family land; on the West Agbadidi and Eledue land. On the South is the Oshamusan family land and Owa family land. On the North is the Elebe stream with a definitive course. On the Eastern side there are three “poroguns” to demarcate our land from that of Aaye-Ayinrin. On the West two poroguns to demarcate our land from Agbaeide and Eledue farm land. Incidentally Eledue land is also a demarcation from the same family that gave the land”.
It is noted that Appellant did not call his grantors the Aaye-Ayinrin family to give evidence on his behalf.
DW2 a member of Aaye-Ayinrin family gave evidence on behalf of Respondent as follows:
“I am Joseph Ayilola-Fagbemiro of 26 Arokodare Street, Ijero-Ekiti. I know John Onishile the plaintiff. I also know Ojo Apo, the defendant…… My family is also Aaye-Ayinrin family. My family has land in Ijero my family land is called Ojogudu along Aramoko Road. The plaintiff is our boundary man there. We are not the one who gave him there. The defendant is my boundary man”.
DW2 a member of the Aaye-Ayinrin denied the fact that the land was given to the Appellant by the Aaye-Ayinrin family.
The Appellant failed to call any of his boundary men. The reasonable deduction would be that, the evidence of the boundary men would be unfavourable to the Appellant. The presumption would be that had these boundary men been called, their evidence would have been fatal to the Appellant’s case which was what happened through the evidence of DW2 who denied granting land to the Appellant.
The learned trial Judge was right in granting the counter claim of the Respondent having successfully proved his Counter-Claim through traditional evidence to the satisfaction of the Court.
The respondent’s evidence was to the effect that:
(i) Amoke-Okogongo the ancestor of the Respondent was the first to settle on the land in dispute and was not challenged.
(ii) Abokobooloro succeeded Amoke-Okogongo.
(iii) Apo succeeded Abokolobioloro.
(iv) Dada Apo came after wards and after him was Olatunde and Ojo Apo was next.
(v) Nobody challenged them until the illegal and unlawful act of trespass of the Appellant on the land.
The evidence of the Respondent was not challenged under cross-examination which is tacit admission in law.
In a claim for declaration of title to land, the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case, but where the case of the plaintiff supports that of the defendant, the defendant can take advantage of and profit therefore. See Ashiru v. Okukoya (2006) 11 NWLR (Pt.990) 32.
The evidence of PW4 and PW5 respectively to the effect that they did not know who owns the land between the parties in dispute is not favourable evidence to the case of the Appellant. It created doubt to the title of the Appellant in respect of the land in dispute. The judgment of the lower court cannot be deduced to be against the weight of evidence from the foregoing.
On whether the learned trial Judge did not properly evaluate the evidence before him. The deduction of the learned trial Judge was based directly on the evidence adduced before the Court.
Appellant’s learned Counsel argued on the following headings:
(i) Magistrate Court Ruling paragraph 5.00 and page 14 of his further Amended brief.
(ii) The Survey Plan: documentary evidence paragraph 7.00 page 18 of this further amended brief.
(iii) The same goes for his argument under the heading Judgment of Ajero in Counsel in page 15 paragraph 6.00 of his further amended brief.
The Appellant did not appeal against any of the documents or issues itemized above and as a result an appellate Court cannot decide on same see Brawal Shipping (Nigeria) Limited v. Aphrodite (Nigeria) Limited (2004) 9 NWLR (Pt.879) 462.
To raise these fresh points on appeal, the leave of this Court must be obtained. It is noted, that a survey plan and the Ruling of the Magistrate Court are not documents of title that could assist or help the case of the Appellant. The function of a survey plan is only for purpose of identification as held in the case of Jinul v. Dimlong (2003) 9 NWLR (Pt.824) 154.
Appellant’s Counsel argued that Appellant NEVER CLAIMED that OJA OLOFINKEMI owned the land by inheritance but that the claim on the Statement of Claim was that Oja-Olofinkemi was given a grant of the land by Aba-Oja-Ajaja.
The above assertion is contradicted by paragraphs 14 and 15 of the amended Statement of Claim at page 36 of the record. Paragraph 14 of the said amended Statement of Claim provides as follows:
“Plaintiff says that when Ojo-Onishile grew up as a young man he started to farm on the royal family farm at Itagba. But after the military hostilities between Ekiti and Ibadan which ended in 1986, Oja-Olofinkemi advised her son Ojo-Onishile to come and start farming on the piece of land she inherited from her brother which was still a virgin land with thick forest”.
Paragraph 15 of the amended Statement of Claim
“Plaintiff avers that Ojo-Onishile could not leave his family farm immediately and completely, he was farming on both farms – the royal family farm and the one his mother inherited….. Whereas paragraph 12 of the amended Statement of Claim expressed Oja-Olofinkemi as taking possession only, so the land was at no time granted to Oja-Olofinkemi”.
And whereas PW1 in his testimony stated as follows:
“Aba-oja-Ajayi died after a few years before he got married and so he had no issue, his father then handed over the land to Ajayi’s sister known as Oja-Olofinkemi who was still a Young girl……..”
Whereas paragraph 4 of Appellant’s amended reply to statement of defence and amended defence to the Defendant’s Counter-Claim states in part as follows:
“… At the premature death of Aba-oja-Ajayi the land was inherited by Oja-Olofinkemi.”
It was deduced by Respondent’s Learned Counsel that from the pleadings, Oja-Olofinkemi purportedly inherited the land contrary to the submissions of Appellant’s Counsel. Also Oja-Olofinkemi took possession or she was purportedly handed over the land.
It is noted that the evidence and the pleadings are contradictory. See Oja Adebayo v. Mrs. F. Ighodalo (Supra). The argument on grant automatically failed.
In order to succeed in a case for declaration of title to land, the Court must be satisfied as to (a) the precise nature of the title claimed. That is to say, whether it is title by virtue of original ownership or customary grant or conveyance or sale by customary law or long possession or otherwise (b) Evidence establishing title of the nature claimed must be credible, convincing and equivocal.
The Appellant failed to discharge the burden of proof the learned trial judge was right to have dismissed the claim of the Appellant while granting Respondents Counter-Claim.
Appeal failed and is hereby dismissed with costs of N20,000.00 in favour of the Respondent.
PAUL ADAMU GALINJE, J.C.A.: The draft of this judgment which was delivered by my learned brother, Akinbami, J.C.A., on 18th December, 2013 was made available to me today the 17th of January, 2014 for my contribution. I have read through and I agree.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading the draft of the lead judgment of my learned brother, Fatima Omoro Akinbami, JCA. I agree with the reasoning of my learned brother and the conclusion reached therein that the instant appeal lacks merit and should be dismissed, I also dismiss the appeal and abide by the consequential orders made therein inclusive of the one regarding costs.
Appearances
Obafemi Adewale Esq.For Appellant
AND
Taiwo Martins Ogunmoroti Esq.For Respondent