JOSEPH AKOLE & ORS V. JOSHUA OJO ALONGE & ANOR
(2013)LCN/6395(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2013
CA/EK/30/2013
RATIO
WHETHER THE BURDEN OF PROOF LIES ON THE PLAINTIFF IN AN ACTION FOR DECLARATION OF TITLE
Furthermore it is trite in an action for declaration of title that the onus is on the plaintiff to prove his case. In so doing a plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. The reason is simple; the defendant’s duty is merely to defend the action. See: Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189) 157. However, a plaintiff is entitled in law to take advantage of any evidence of the defendant that tends to enhance or establish his case. See Piaro v. Tenaolo (1976) SC 31; Egonu v. Egonu (1978) 11/12 SC. 111. PER UCHECHUKWU ONYEMENAM, J.C.A.
DUTY OF COURT: EVALUATION OF EVIDENCE
The law is settled that a trial court has a fundamental duty to evaluate evidence and make specific findings of facts on issues before it. However, when a trial court abdicates this legal duty, the appellate court has an open though limited invitation to step into the function of making its own finding based on the evidence on record just as the trial court would have done. Limited I say, because the appellate court is only as good in a position of a trial court in making findings of facts when such evaluation does not involve the issue of credibility of witnesses. See: Col. Nicholas Anyanru (RTD) V. Mandilas Limited (2007) 10 NWLR (Pt. 1043) 462; Ogunleye V. Oni (1990) 2 NWLR (Pt.135) 745; Gabriel Ndibe & Ors V. Patrick Sunday Ndibe (2008) LPELR – 417. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. JOSEPH AKOLE
2. ADEBANGBE ARULEBA (FOR THEMSELVES AND ON BEHALF OF OSOTUN FAMILY, IKERE-EKITI)
3. OJO AFUYE
4. BABATOLA OLUREMI (FOR THEMSELVES AND ON BEHALF OF ELEMESO FAMIILY, IKERE-EKITI)
5. AMOS ADEGBOYE
6. SUNDAY OGUNYEMI Appellant(s)
AND
1. JOSHUA OJO ALONGE
2. EZEKIEL AGBETUYI (FOR THEMSELVES AND ON BEHALF OF OSOBE FAMILY, UGELE QUARTERS, IKERE-EKITI) Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ekiti State sitting at Ikere Ekiti, delivered on 20th October, 2011. The learned trial Judge granted all the reliefs sought at the lower court by the Respondents. Dissatisfied with the said judgment the Appellants appealed against same vide their Notice of Appeal dated and filed on 17th January, 2013.
The Respondents claimed against the Appellants the following reliefs:
“1. A declaration that OSOBE FAMILY HALL situate, lying and being at the Osobe family compound, Ikere Ekiti belongs exclusively to the plaintiffs and that only the plaintiffs can exercise acts of ownership over same.
2. A declaration that first to fourth defendants are not members of the OSOBE FAMILY of Ugele Uro Quarters, Ikere Ekiti and as such have no power to manage, supervise or interfere in the affairs of OSOBE FAMILY of Ikere Ekiti.
3. A declaration that the first and second defendants are members of OSOTUN FAMILY of Eruku Ikere Ekiti.
4. A declaration that the third and fourth defendants are members of ELEMOSO FAMILY of Ikere Ekiti.
5. A sum of N1 million general damages for acts of trespass committed and still being committed by all the defendants, their agents, servants or privies on the plaintiff s’ land situate, lying and being at Abepe farmland, Eti Osun, Igbara Odo Road Ikere Ekiti.
6. An order of perpetual injunction restraining the defendants their servants, agents or privies from committing further acts of trespass on the plaintiffs’ land situate, lying and being at Abepe farmland, Eti Osun, Igbara Odo Road, Ikere Ekiti”
The Respondents’ case at the lower court is that they are members of Osobe family, Osobe compound, Ikere Ekiti while the 1st and 2nd Appellants are from Osotun family of Ikere Ekiti and 3rd and 4th Appellants are members of Elemoso family of Ikere Ekiti. The Respondents grouse is that the 1st and 4th Appellants sold the Respondents’ family land to strangers including the 5th and 6th Appellants. They alleged that the farmland in dispute belonged to their ancestor late Pa Osobe. They added that they had been exercising various acts of ownership on the farmland before the Appellants trespassed into the farmland which act of trespass prompted the action at the lower court.
On their part, the Appellants’ case was that Osobe and Osotun were from the same family with Elemoso as their father. They further asserted that the Respondents were merely engrafted into the Osotun/Osobe family of Uro Ikere Ekiti for the fact that their great mother Alaoko was Osobe’s daughter.
The case later proceeded to trial and the Respondents as Plaintiffs called three witnesses and also tendered three exhibits marked A, B and C respectively. See: pages 168 -175 of the record. The Appellants who were Defendants equally called three witnesses and tendered one exhibit, which was admitted as exhibit D.
At the close of the Appellants’ case on 20th June 2011, the court ordered parties to file written addresses. At this stage the Respondents brought an application to amend their statement of claim which application was granted. Thereafter the Appellants obtained leave of the court to recall two of their witnesses, they also amended their pleading and filed a supplementary address as their final address had already been filed before the amendment granted the Respondents.
The learned trial Judge finally delivered judgment in this case on 20th October, 2011 and granted all the reliefs sought by the Respondents. See: pages 192-206 of the record. The appeal against the judgment of the lower court is by Notice of Appeal filed on 17th January, 2013 with four Grounds of appeal.
The parties filed and exchanged their briefs in line with the rules of court. The Appellants’ brief dated 20th March, 2013 but filed on 21st March, 2013 was settled by Mr. Kayode Akinwumi. In their brief the learned Counsel distilled 6 issues for the determination of this appeal. The issues are:
1. “Whether the learned trial Judge was right to have granted the application brought by the Plaintiffs/Respondents to amend paragraph 10 of their statement of claim which was admitted by the defendants/Appellants in their statement of defence considering the state of the proceedings in Suit No HCR/28/2005.
2. Whether the learned trial Judge properly evaluated, if he ever carried out any evaluation, the evidence placed before him in arriving at the conclusion that the defendants/Appellants are tenants to the Plaintiffs /Respondents.
3. Whether the failure of the trial Judge to advert to and consider the evidence from all the Appellants’ witnesses, Exhibit D tendered by the Appellants and admitted without any objection from the Respondents counsel, the final written address filed by the appellants counsel, together with the supplementary address, does not amount to a denial of fair hearing and whether this failure has not occasioned an injustice to the Defendants/Appellants.
4. Whether the learned Judge properly exercised his discretionary power judicially and judiciously when he rejected the Defendants/Appellants application to amend their statement of defence on the ground that the Plaintiffs had closed their case and would therefore have no time to react to the amendment after which the said Judge granted a similar application brought by the plaintiffs when the defendant had not only closed their defence but have gone ahead and filed their final written address as mandated by the court.
5. Whether the learned trial Judge was right in his failure to give any specific findings of fact on the question placed before him by the parties to this case, as regard the true child of Pa Osobe between Oluabinu mentioned by the Plaintiffs/Respondents in their amended statement of claim and Osotun asserted by the Defendants/Appellants in their defence.
6. Whether the Plaintiffs/Respondents actually proved that they are in actual or constructive possession of Abepe Farmland to be entitled to a claim in trespass against the Defendants/Appellants.”
For the Respondents, Mr. Emmanuel Bamidele Omotoso who prepared their brief formulated the following 3 issues for determination:
i. “Whether having regards to the circumstances of this case, the trial court was wrong in granting the respondents’ application for leave to amend their statement of claim at the time it did.
ii. Did the trial court make any specific finding on who is the true son of Osobe between Oluabinu and Osotun.
iii. Whether the learned trial Judge properly evaluated the evidence of the parties before coming to the conclusion that the respondents proved their claims as per the writ of summons and statement of claim.”
On 15th April, 2013 when the appeal came up for hearing Mr. Omotoso indicated that the Respondents filed a Notice of Preliminary Objection on 26th March, 2013. He identified the objection and made reference to their argument at pages 3 – 6 of the Respondents’ brief. Learned Counsel adopted their argument on the Preliminary Objection and urged the court to strike out issues 2, 4 and 6 of the Appellants’ issues.
Mr. Akinwumi in response said the Appellants filed a reply to the preliminary objection on 5th April, 2013. He referred to their argument at pages 1 – 4 of the Appellants’ reply brief and adopted same as their argument. He noted that the Appellants in their reply brief conceded that they were in error to have distilled 6 issues from their 4 grounds of appeal. He urged the court to discountenance the objection the interest of justice.
In arguing the appeal, Mr. Akinwumi referred to the Appellants’ brief filed on 21st March, 2013 and reply brief filed on 5th April, 2013. He adopted both briefs, relied on the arguments therein as the Appellants’ argument in the appeal and urged the court to consider the appeal on its merits. He sought and obtained leave of the court to abandon issues 2 and 4 of their issues thereby making the issues before the court competent. Learned Counsel urged the court to allow the appeal.
Mr. Omotoso in arguing the appeal said the Respondents filed a reply brief on 26th March, 2013. He referred to the argument at pages 7 – 29 of their brief on the 3 issues they formulated. The Learned Counsel adopted the brief and urged on the court to dismiss the appeal. At this point, Mr. Omotoso applied, that the Respondents’ Preliminary Objection be struck out.
This application which was not objected to by the Appellants’ counsel was granted. The Preliminary Objection was struck out. Judgment was thereafter reserved to a later date to be announced to parties and or counsel.
The 3 issues formulated by the Respondents are same in purport with issues 1, 5 and 6 raised by the Appellants. The Respondents issues did not cover issue 3 of the Appellants issues. I shall adopt the 4 issues raised by the Appellants in their brief so as to fully address their grouse.
Issues 2 and 4 were struck out having been abandoned by the Appellants. Accordingly the issues left for the determination of the appeal are issues 1, 3, 5 and 6. I shall determine the issues as issues 1, 2, 3 and 4 seriatim.
ISSUE 1:
The Appellants submitted on this issue that the learned trial Judge was wrong to have granted the Respondents’ application for amendment after the Appellants as defendants had closed their defence and filed their final written address. They referred to paragraph 10 of the Respondents’ statement of claim where the Respondents pleaded that Osobe had nine children but listed only eight children which averment was admitted by the Appellants. It was their contention that the Appellants in their amended statement of defence (paragraph 5) gave the name of Osotun as the ninth child of Osobe and Elemeso as the father of Osobe. Thereafter Pw1 while giving evidence gave the name of the ninth child of Osobe as Oluabinu which evidence was not pleaded.
The Appellants contended that the trial court should have expunged the unpleaded evidence of Pw1 rather than granting the Respondents leave to amend their statement of claim at that stage of the proceedings. While conceding that the grant of amendment is the discretionary power of the court, they submitted that the trial court did not exercise his discretion judiciously and judicially. They cited: Governor Ekiti State & 10 Ors. V. Chief George Femi Oio & 5 Ors. (2006) ALL FWLR (Pt. 331) 1298 at 1324 paras G-H; Idowu Imie V. Joseph Kayode Popoola & Anr. (2008) ALL FWLR (Pt. 416) 1975 at 1986.
On the factors which a court should consider before granting an amendment, the learned counsel for the Appellants referred to: Alhaji Aransi Ibrahim V. Father Dailey (2009) ALL FWLR (Pt. 494) 1576 at 1582 paras C-E; and submitted that the instant circumstance does not fall within when a court should exercise its discretion to grant an amendment.
He finally urged the court to hold that the application for amendment brought by the Respondents after Appellants had closed their case and filed their final address was brought in bad faith and was meant to overreach the Appellants. He urged the court to resolve the issue in favour of the Appellants.
In response, the Respondents’ counsel referred to Order 26 Rule 2 of the High Court of Ondo State (Civil Procedure) Rules as applicable to Ekiti State to submit that a Judge or court can even in chambers grant an amendment for the purpose of determining the real question in controversy between the parties. He referred to the Respondents’ averment in paragraph 10 of their statement of claim to note that the ninth name was missing. He added that the PW1 in his evidence mentioned the ninth child of Osobe which necessitated the Respondents to amend their statement of defence to bring it in line with the evidence. On the guiding principles in the grant of an amendment, the learned counsel referred to: Ita v. Dadazie (2000) 4 NWLR (Pt.652) 168 at 180 – 181 paras D – A.
The learned counsel also noted that, after the grant of the amendment; the learned trial Judge granted the Appellants leave to make consequential amendments of their pleadings and to recall two witnesses.
He finally urged the court to resolve the issue in favour of the Respondents.
It is trite principle of law that where an amendment will allow the pleadings to be in line with evidence and findings made by the trial Judge, the same will be allowed. See: England V. Palmer 14 WACA 659; Woluchem V. Gudi (1981) 5 S.C. 291; Okafor V. Ikeanyi (1979) 3 & 4 S.C. 99 at 106; Akaninwo V. Nsirim & 3 Ors. (2008) 9 NWLR (Pt.1093) 439. Amendment will also be allowed where it is necessary for the purpose of determining the real question in controversy between the parties. Once it is established that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, amendment will be permitted to have it corrected if it can be done without injustice. See: Ogidi V. Egba (1991) 10 NWLR (Pt. 621) 142; Akaninwo V. Nsirim & 3 Ors. (2008) 9 NWLR (Pt. 1093) 439. Where there is variance between the statement of claim and the evidence adduced at the trial by the plaintiff, an amendment becomes imperative and in which case the court will allow same even after the completion of the case and judgment reserved. See: The Shell Pet. Co. Nig. Ltd. V. Kwameh Ambah (1999) 2 S.C. 129. The Court will also allow an amendment to enable the use of evidence that has been obtained for the purpose of settling the real controversy between the parties. See Ojah v. Ogboni (1978) 4 SC 69: Okeowo v. Migliore (1979) 11 SC 138.
In the instant appeal, the Respondents had pleaded that Osobe had nine children but in listing the names they mentioned eight names. But the Pw1 while giving evidence mentioned Oluabinu as the ninth child of Osobe. The Respondents applied and was granted leave to bring their statement of claim in line with the evidence on record. It is correct that the application was brought after the Appellants as defendants had closed their case and filed their final address. This however; cannot be a reason for a court to refuse an application for amendment as it is trite that an amendment can be made at any stage even on appeal once it is to bring pleadings in line with the evidence and the findings of the court on record, provided: it will not work injustice on the opposing party or cause undue delay to the hearing and determination of the case.
At paragraph 10 of the Respondents’ statement of claim, the Respondents pleaded that Pa Osobe had nine children and in listing them omitted one name. I cannot imagine the injustice the supply of the name by amending to add the omitted ninth name will cause the Appellants nor surprise the inclusion of the ninth name will spring on Appellants. This is moreso as the Appellants were allowed not only to make consequential amendments but to recall two of their witnesses after the Respondents’ amendment.
I must admit that the Appellants’ counsel is correct that in law any evidence on unpleaded fact goes to no issue and ought to be expunged. It is for this principle that any evidence of unpleaded fact on record necessitates an amendment of the pleadings to bring the pleadings in line with the evidence on record to avert the risk of it being expunged. The rationale behind this principle of amendment is to ensure matters are decided on their merits by answering the real questions in controversy. The contrary will amount to sacrificing justice on the altar of technicality which is synonymous with covering dirt with a carpet as opposed to the principle of hygiene. It is my view therefore that the learned trial Judge was right in granting the Respondents’ application to amend their statement of claim at the stage he did.
I hold this view since I have failed to see any injustice the amendment caused neither have the Appellants been able to show any. From the facts as examined on this issue, I am unable to agree with the Appellants that the Respondents’ application granted by the learned trial Judge was brought mala fide neither did it in any way overreach the Appellants. To this extent therefore, the case of Ibrahim V. Dailey (2009) ATP FWLR (Pt. 494) 1576 at 1582 is not an authority to persuade the court to hold that the learned trial Judge was wrong in granting the Respondents’ application for amendment when he did. I therefore hold that the learned trial Judge was right in granting the Respondents the amendment sought. Accordingly, I resolve issue in favour of the Respondents.
ISSUE 2:
The learned counsel for the Appellants referred to the evidence of their three witnesses at the lower court, Exhibit D tendered by them, evidence of DW1 and DW2 after they were recalled and their supplementary address as a result of the Respondents’ amended pleadings to contend that the learned trial Judge did not make reference to any of the above in the judgment appealed against. He argued that the learned trial Judge did not only jettison the oral evidence of the Appellants but also ignored the documentary evidence – Exhibit D, in arriving at his decision.
Mr. Akinwumi submitted that the failure of the learned trial Judge to give adequate consideration to the Appellants’ evidence as highlighted above constitutes a breach of the Appellants right to fair hearing as enshrined in section 36 of the 1999 Constitution. He further submitted that the trial court having infringed on the Appellants’ right to fair hearing, the whole proceedings and judgment are rendered null and void. He referred to: Maliki V. Michael Imodu Institute for Labour Studies (2009) All FWLR (Pt. 491) 979 at 1012 Para B; Alhaji Ibrahim Idris & 6 Ors V. Prince Abubakar Audu (2008) All FWLR (Pt. 422) 1122 at 1555 – 1556 paras F -A; Nwakanma V. Ojukwu (2007) All FWLR (Pt 395) 504 at 520; Dantata & Sawoe Construction Company Ltd V. Angulu Ibrahim (2003) 31 WRN 80 at 88.
The learned counsel further contended that even if Exhibit D was a worthless document tendered and admitted in evidence, the trial Judge owes a duty to the administration of justice to express an opinion on the document and the reason or reasons why he thinks the document is irrelevant. He cited: Ugochukwu V. Nwoke (2011) 5 WRN 93 at 106 -109; Nwaukoni V. Bielonwu (2009) (Pt. 471) 962 at 979.
Finally he submitted that a party, whose evidence, both oral and documentary, were not considered by a court before its decision cannot be said to have been given fair hearing. He relied on: See F.C.D.A v. Ezinkwo (2007) 18 WRN 158 at 64-65; Orakul Resources Ltd. & 1 Or. V. Nigerian Communications Commission (2007) 18 WRN 89 at 120-121 lines 40-5, also 121 lines 5-15; Chemiron International Ltd. V. Egbuju Onuma (2007) All FWLR (part 395) page 444 at 458 para. C; H.S.H.M.C. Ltd V. Sahyra (Nig) Ltd (2008) All FWLR (part 397) page 132 at pages 145-146 paras, F-A; page 147, paras D-E; pages 148-149, A-B and F-A.
The court was then urged to resolve the issue in favour of the Appellants.
Mr. Omotoso for the Respondents did not address the court on this issue.
The right to fair hearing is a constitutional right. Its breach in any trial nullifies the said trial. The right to be heard in any trial is so crucial and jealously guarded that courts always bend backwards to uphold it. Once fair hearing is violated in any proceeding, it is immaterial that the same decision would have still been reached in the absence of the violation. Decision ensuing from the proceeding is no decision in law. See: Orakul Resources Ltd & Anor. V. Nigerian Communications Commission & Ors. (2007) 18 WRN 89 at 120 – 121.
From the record, at pages 194 – 197 of the judgment of the lower court; the learned trial Judge considered and held that the Appellants cannot successfully plead res judicata by reason of Exhibit D. This was the only consideration the learned trial Judge gave to Exhibit D. He did not consider the evidence therein particularly pages 20 and 22 of the said exhibit referred to by the learned counsel for the Appellants. See: page 116 of the record.
The issue of res judicata of Exhibit D embarked upon by the learned trial Judge with due respect was not in issue. From the record, the court of Appeal had decided in Akole V. Alonge (2009) ALL FWLR (Pt.468) 15 that the Appellants in the action that lead to this appeal could not successfully plead res judicata and sent the matter back to be tried by the lower court which was held to have jurisdiction. It is equally a fact from the record that the Appellants in their amended statement of defence dated 7th December, 2010 canvassed in paragraph 31 therein that they will rely on the defence of res judicata, but the averment was later abandoned as the Appellants as defendants did not give evidence on this at the trial. Exhibit D was therefore tendered for another purpose outside grounding the defence of res judicata and for that purpose the learned trial Judge failed on the face of the record to either consider or make any pronouncement on the said exhibit.
I am mindful of the fact that a court is not bound to consider all arguments raised by parties in a trial but the courts are bound to pronounce on submissions that border on material issues which are pertinent to the resolution of the real controversy of the case. In this case, material to the resolution of the crux of the issue before the court is: between Osotun and Oluabinu who is the child of Osobe. Evidence had been adduced to the position of Osotun vis-a-vis the Osobe family by members of Osobe family in Exhibit D. Also evidence was given therein as to the relationship between Elemeso and Osobe. The trial court had the legal duty to consider this document not for the determination of whether Exhibit D constitutes res judicata to the suit that led to this appeal but on issues that were raised before it. In Exhibit D some members of the Respondents’ family had put forth the same argument and fight as in this case that the Osotun family had no relationship with the Osobe family and were merely tenants on Abepe farmland. They had also contended vigorously that the family hall belonged to them exclusively. In Exhibit D the learned trial Judge affirmed that the Appellants are members of the paternal side of Osobe family as opposed to the Respondents who are from the maternal side of the family through their great grandmother one Alaoko. See: Exhibit D at pages 220 – 243 of the record. These facts were drawn to the attention of the learned trial Judge in the Appellants’ final address. See: pages 58 – 69 of the record. Agreeably, the learned trial Judge was not bound by the decision in Exhibit D, but Exhibit D having been tendered and admitted in evidence without objection; and being relevant to the facts in issue, the learned trial Judge had the duty to consider same and express opinion on it as to why it should or not be accorded probative value. This, the trial court failed to do.
I have carefully gone through the judgment of the lower court, I find no where that the learned trial Judge made reference to the evidence of the Appellant’s witnesses nor their supplementary address. The learned trial Judge merely summarized the evidence of parties and without any form of evaluation made findings in favour of the Respondents and thereafter entered his judgment in their favour.
The Appellants are right in their submission that a party whose evidence both oral and documentary in a case was not considered before the decision of a court cannot be said to have been heard in the con of the meaning of fair hearing. It must be borne in mind that it is immaterial that the outcome of the decision would have been the same if the evidence was considered. Accordingly having held that the learned trial Judge did not consider so to say the evidence of the Appellants before arriving at his decision, the right to fair hearing of the Appellants was breached. I therefore hold that the decision of the learned trial Judge in law amounts to no decision. Consequently the entire proceedings and judgment amount to a nullity.
Issue 2 is resolved in favour of the Appellants.
ISSUE 3:
The learned counsel for the Appellants referred to paragraph 10 of the Respondents’ statement of claim, the Appellants’ paragraphs 2 and 5 of their amended statement of defence, the evidence of PW1 , paragraph 10 of Respondents’ amended statement of claim, paragraphs 3A and 3B of the Appellants’ consequential amended statement of defence, the evidence of the two recalled Appellants’ witnesses and the Appellants’ supplementary written address to submit that: failure of the learned trial Judge to make specific findings of fact on whether Osotun was the son of Osobe or not before deciding that the Appellants were Respondents’ tenants made the decision of the trial court perverse. In the circumstance the learned counsel submitted that the proper order for this court to make is an order setting aside the judgment of the lower court. He relied on: Paulina Sebastian Akpan V. Mrs. Anthonia Alphonsus Etim Udo (2007) All FWLR (Part 395) page 540 at 555 paras A-C; Obisi V. Chief of Naval Staff (2004) 18 NSCQR 618 at page 632; Cadbury Nigeria Plc & 11 Ors V. Securities and Exchange Commission (2011) 16 WRN at 881 lines 45-15 Chief Brown Uzuba & 2 Ors V. Mr. Ezekiel Ebicah & 1 Ors. (2009) All FWLR (Part 493) page 1224 at 1249-1250 paras F-C.
In response Mr. Omotoso for the Respondents referred to the evidence of PW1 at page 168 of the record, paragraph 5 of the Appellants’ amended statement of defence at page 131 of the record to contend that the Appellants did not give evidence of how they are related to Osotun. He added that the learned trial Judge’s failure to make specific finding on who between Oluabinu and Osotun is the son of Osobe could not be challenged as there is nowhere on record that Oluabinu was referred to as the son of Osobe.
He finally submitted that the Appellants failed woefully to convince the court that if the learned trial Judge had made specific finding on this issue, the judgment would have been different or that the failure occasioned a miscarriage of justice. He urged the court to resolve the issue in favour of the Respondents.
The law is settled that a trial court has a fundamental duty to evaluate evidence and make specific findings of facts on issues before it. However, when a trial court abdicates this legal duty, the appellate court has an open though limited invitation to step into the function of making its own finding based on the evidence on record just as the trial court would have done. Limited I say, because the appellate court is only as good in a position of a trial court in making findings of facts when such evaluation does not involve the issue of credibility of witnesses. See: Col. Nicholas Anyanru (RTD) V. Mandilas Limited (2007) 10 NWLR (Pt. 1043) 462; Ogunleye V. Oni (1990) 2 NWLR (Pt.135) 745; Gabriel Ndibe & Ors V. Patrick Sunday Ndibe (2008) LPELR – 417.
Accordingly an appeal will be allowed where the resolution of the relevant issues and making of findings on material facts by the appellate court will depend on the credibility of witnesses. In that case, the proper order to be made by the appellate court is that of a retrial of the suit. See: Boniface Nnorodim & Anor V. Eze Paul Ezeani & Ors (2001) 5 NWLR (Pt. 706) 203.
I will want to quickly add that the responsibility of the trial court to make findings of facts ignite when issue has been joined between parties otherwise the trial court is not under any legal obligation to make any finding; and any such non-finding cannot be adjudged to occasion a miscarriage of justice. See: Karibo V. Grend (1992) 3 NWLR (Pt. 230) 426.
The Appellants’ contention is that the learned trial Judge ought to have found on whether Osotun is the son of Osobe before arriving at his decision. The Respondents contended that such finding was not necessary because the issue of Oluabinu being a son did not arise and that the Appellants did not plead nor give evidence on Osotun’s relationship with Osobe. With all due respect to the learned counsel for the Respondents, he was merely trivializing a serious issue in the matter when he submitted that the sonship of Oluabinu was not in issue and therefore the determination of the sonship of Osotun to Osobe was not material. Yes it is correct that the Respondents in their amended statement of claim at paragraph 10 listed Oluabinu as a female child of Osobe. Also PW1 in his evidence at page 167 of the record mentioned Oluabinu as Pa Osobe’s daughter. From the totality of the evidence on record, the issue is not whether Oluabinu was a daughter or son but between Oluabinu and Osotun who was the child of Pa Osobe. In their statement of claim at paragraph 10 the Respondents pleaded that Pa Osobe had nine children but listed eight. The Appellants admitted the Respondents’ paragraph 10 in paragraph 2 of their statement of defence. However the Appellants at paragraph 5 of their amended statement of defence stated that Osotun was also the son of pa Osobe and that Elemeso was the father of Osobe thereby filling the missing link. The matter proceeded for hearing upon the facts stated above. White PW1 gave evidence, he mentioned that Oluabinu was also Osobe’s child. Then again at the tail end of the proceedings after the Appellants had closed their case and filed their written address and served same on the Respondents; the Respondents applied and obtained leave of the court to amend their pleadings to be in line with the evidence of PW1 who added the name of Oluabinu as Osobe’s child, howbeit daughter. Resultantly at paragraphs 3a and 3b of the Appellants’ consequential amended statement of defence; the Appellants averred thus:
“3a. The Defendants partially admit paragraph 10 of the amended statement of claim to the effect that while Osobe had nine children in his life time all the children mentioned in the said paragraphs are children of pa Osobe except OLUABINU who is unknown to the Defendants.
3b. That Osotun rather than Oluabinu is the ninth child of Pa Osobe.”
From the above it is not correct as submitted by the learned counsel for the Respondents that the Appellants did not plead Osotun’s relationship with Osobe. Then again DW1 under cross examination stated that Osobe is the father of Osotun. DW2 testified thus:
“….I am from Osobe family. ……………….. Osobe gave birth to Osotun. Elemoso is the father of Osobe. Osotun and Osobe are one. Therefore the family was known as Osobe because Osobe was the father of Osotun.” Yet in addition DW3 in his evidence said; “….. Pa Osobe had nine children in his life time…… the name of the ninth child is Osotun.” Furthermore DW2 when recalled to testify maintained that Osotun was one of the nine children of Osobe. He added – “….. Nobody is by name Oluabinu in our family. Osobe and Osotun are same. Osobe is the father of Osotun. I am hearing the name of Oluabinu for the 1st time in this court. We have been on this case since 1989. The name Oluabinu never came up.”
From the foregoing therefore it will not be correct to say that the Appellants did not give evidence as to the relationship between Osotun and Osobe.
Also from the pleadings and evidence highlighted above, the status of Osotun in Osobe family was a material fact which the learned trial Judge ought to have made finding on before arriving at his decision. Whether or not the Appellants are the Respondents’ tenants depends heavily on whether Osotun is Osobe’s son or not. Accordingly, any conclusion arrived at by the lower court without first making a finding on the contentious ninth child of Osobe cannot be correct as same will be tainted with error which could only be erased by deciding between Oluabinu and Osotun who is the child of Osobe.
I therefore hold that the Learned trial Judge erred in arriving at his decision without first deciding whether Osobe was the father of Osotun. I shall now proceed to consider whether this court can in the circumstances of this case make the finding which the trial court failed to make based on the evidence on record. If not, whether the non finding of the lower court made its decision perverse and occasioned a miscarriage of justice.
I had earlier stated that this court can only step in to evaluate and make findings of fact which the trial court failed to make within the confines of the evidence on record and if the evidence required to make the findings is such that does not require the observance of the demeanour of a witness. From the facts of the case that led to this appeal where it seems that the personality of the ninth child of Osobe was an afterthought as both parties could only give the name of the supposedly ninth child of Osobe in their amended pleadings; it is in my view, an evidence which the truth could only be deciphered by observing the demeanour of the witnesses that supplied the names and cross examining them to ascertain the veracity of the said evidence. Since this cannot be done at this stage, it is my opinion that I cannot rightly make the finding of fact on; between Osotun and Oluabinu who is the ninth child of Osobe.
Since I cannot make the finding in the circumstances of this case, the next question is whether the failure of the trial court to make the finding before its decision is such that would make this court reverse its judgment.
A court is not under any legal duty to make findings on every issue but must find on every material issue. In the case before the trial court, the controversy was whether the Appellants are the Respondents tenants or joint owners of the land in dispute. The Appellants’ contention is that they are joint owners by reason of the fact that they are the descendants of Osobe the father of Osotun. On their own the Respondents maintained that they have no relationship with the Appellants and that they are the descendants of Osobe. They argued that they are the sole owners of the land in dispute as Osotun is not Osobe’s child. It follows therefore that the dispute cannot be settled without first determining whether or not Osotun is the son of Osobe. This makes this a material issue which the trial court was under legal obligation to find on. Not having found on this material issue the decision of the trial court is perverse and I hold that the same occasioned a miscarriage of justice. The ensuing decision is therefore bound to be set aside for being perverse.
This issue is resolved in favour of the Appellants.
ISSUE 4:
The Appellants made reference to the Respondents’ three witnesses at pages 172 – 175 of the record and three exhibits which are: the layout plan of Abepe farmland – Exhibit A; the judgment of a magistrate court – Exhibit B; the Osobe family hall building plan – Exhibit C. He further referred to the evidence of the three Appellants’ witnesses and one exhibit at pages 176 – 177 and pages 180 – 184 of the record; also the evidence of the Appellants’ two recalled witnesses to submit that the Respondents failed to establish that they are the sole owners of Abepe farmland and that they are in actual and or constructive possession of same.
The learned counsel further contended that the trial court was wrong when it came to the conclusion that the Respondents proved their averments in paragraphs 18, 19, 20 and 21 when there was no concrete and reliable evidence beyond the scanty evidence offered by PW1 to support the averments. He referred to: Ikegbunani v. Onwubuya & 3 Ors (2007) All FWLR (part 345) page 379 at 385 – 386 paras. G.A; Angbazo V. Ebye (1993) 1 NWLR (Pt. 268) page 133; Eze V. Akpan (2009) All FWLR (part 461) page 954 at 973 paras. A-B; Olorunfemi V. Asho (2000) ISCNOR 43, Godfrey Nsionu & 1 Or V. Chukwunonso Nsionu (2011) 16 WRN 111 at 122 lines 35-40.
He finally urged the court to hold that the learned trial Judge was wrong to hold that the Appellants are trespassers on Abepe farmland.
Mr. Omotoso for the Respondents in response submitted that the judgment of the learned trial Judge on the 1st and 2nd Appellants’ membership of Osotun family on the one hand and 3rd and 4th Appellants’ membership of Elemoso family on the other hand is unassailable as same was based on the evidence on record which evidence was properly evaluated by the trial court.
The learned counsel contended that in law a claim for trespass coupled with an order for injunction automatically puts title in issue. He argued that the party with a better title in this case will be adjudged the owner of the Abepe farmland in dispute. He referred to the five ways of proving a title to submit that a plaintiff will succeed if he is able to prove any one of them even if he had pleaded a number of them. He cited: Irolo V. Uka (2002) 14 NWLR (Pt.786) 195 at 229 – 231; Piaro V. Tenalo (1976) 12 SC 31 at 40 – 41. Learned Counsel maintained that the evidence of PW1 at pages 168 – 169 proved the Respondents’ case by both traditional history, acts of ownership and long possession. The learned counsel thereafter urged the court to resolve the issue in favour of the Respondents.
Trespass is basically a wrong to possession. It arises from the slightest disturbance to possession by a person who cannot establish a better title. See: Abotche Kponugho & Ors. V. Adja Kodadjo (1933) 2 WACA 24. To succeed in an action for trespass, the plaintiff must prove that he is the owner of the land or that he has exclusive possession of it. A trespasser cannot in law secure possession by his act of trespass against the person he is trespassing. See: Osho V. Foreign Finance Corp. (1991) 4 NWLR (Pt. 184) 157.
To show acts and exclusive possession the Respondents averred as follows: paragraphs 18, 19, 20 and 21 of their amended statement of claim.
18. “Members of the Plaintiffs’ family were allocated some plots of land whilst the family sold some plots to other members of the public who have built up their plots and are living thereon.
19. Plaintiffs and their ancestors farmed on the land in dispute. Plaintiffs are in possession of same.
20. In further exercise of their right of ownership over the land, the plaintiff’s family granted to members of the public permits to farm and grow food and cash crops and fell timber.
21. In the process some persons who were from other families took action against some members of the plaintiffs’ family in courts but they lost the actions. ”
The learned trial Judge relied on the evidence of PW1 in arriving at the conclusion that the Respondents proved exclusive and better title than the Appellants. The PW1 in his evidence under cross examination stated thus:
“….the Defendants built on the land when the case had been in court (sic). I cannot remember when the Defendants started building on the land………Both the Plaintiffs and Defendants were holding meeting together at the Osobe family hall. Till date no member of the Osobe family has any house at Abepe…. I cannot remember the date I last visited Abepe farmland. ….The Defendants are currently using Osobe family hall. We last entered the hall when this case was about to be instituted. We sold land to Ezekiel Oso, Olowo Buraimoh and Kunle. They came to our family meeting to ask for land at that time plaintiffs’ family and defendants family were holding meeting together… Osotun and Osobe are not related at all.” (Underlining mine for emphasis).
Examining the evidence of PW1 both in chief and under cross examination, the puzzle the lower court failed to resolve is; how come both the plaintiffs’ (Respondents) and defendants’ (Appellants) families were holding meetings together in the Osobe family hall up and until the family head tussle giving rise to the action at the lower court in 1989 if both are not related. It is of great importance to note that it was at such a joint family meeting that Ezekiel Oso and others came to the family to ask for land. The only reasonable deduction from this piece of evidence is that the Respondents and Appellants are related. Also that both parties were jointly approached by the likes of Ezekiel Oso in one of such their family meetings at Osobe family hall to request for the family land which was eventually sold to them. It is my view that the trial court was wrong when it held that both the Appellants and Respondents had no relationship. Rather the learned trial Judge was bound in law owing to the evidence placed before him to find on the nature of the relationship between the parties.
On the issue of exclusive possession, from the PW1’s evidence, white no member of “Osobe’s” family has any house at Abepe, the Respondents have houses there. Also the purported land sold to Ezekiel Oso and others was hatched at a joint family meeting of the Respondents and Appellants while money used to build the family hall was from proceeds of the said sale. The evidence of the Respondents show that the Appellants have exclusively been in possession of the land and the family hall since 1989 while prior to that both parties had been in joint use of the family hall and land. I do not see anything that attributes exclusive possession to the Respondents of the Abepe farmland from the totality of the evidence of PW1 heavily relied on by the trial court in arriving at its decision. I therefore do not agree with the learned trial Judge that the Respondents were in exclusive possession to so entitle them to succeed in their action for trespass against the Appellants.
Furthermore it is trite in an action for declaration of title that the onus is on the plaintiff to prove his case. In so doing a plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. The reason is simple; the defendant’s duty is merely to defend the action. See: Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189) 157. However, a plaintiff is entitled in law to take advantage of any evidence of the defendant that tends to enhance or establish his case. See Piaro v. Tenaolo (1976) SC 31; Egonu v. Egonu (1978) 11/12 SC. 111.
Reliefs 1 – 4 of the Respondents’ reliefs at the lower court are for different kinds of declaratory rights. The Respondents must succeed or fail based on their own evidence. From the record there is no evidence from the Appellants that tend to support the case of the Respondents. Also from what I have said earlier in this judgment the Respondents failed from their evidence to establish their exclusive use of the family hall at any time or the fact that the Appellants are not related to them.
I therefore hold that the trial court was wrong when it held that the Appellants were trespassers to the Abepe Farmland when the Respondents failed to prove they were in actual or constructive exclusive possession of the said farmland.
I resolve this issue in favour of the Appellants.
Consequently, appeal succeeds in part and is allowed. From what I have said above particularly my resolutions of issues two and three, I set aside the judgment of High Court of Ekiti State sitting at Ikere Ekiti delivered on 20th October, 2011 in Suit No: HCR/28/2005. I order that Suit No: HCR/28/2005 be remitted back to the Chief Judge of High Court of Ekiti State to be re-assigned to another Judge for hearing and determination.
I make no order as to costs.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft the lead Judgment of my Lord, UCHECHUKWU ONYEMENAM, J.C.A., just delivered.
My Lord has adequately dealt with the issues in this appeal and I agree with the reasoning and conclusion of my Lord which I adopt as mine.
I will also emphasize that the right of fair hearing being a constitutional right, the breach of it in any trial, investigation or inquiry is very fundamental in that it nullifies the trial, investigation or inquiry and any action taken on them is also a nullity,
See: ADIGUN VS. ATTORNEY GENERAL OYO STATE (1987) 1 NWLR PART 53 PAGE 678.
A situation as in this case where both oral and documentary evidence of the Appellants were not considered by the trial Judge in his Judgment cannot be said to have passed the test of fair hearing. The said Judgment is therefore a nullity.
It is for the above reason and fuller reasons in the lead Judgment that I also hold that there is merit in this appeal and it is allowed by me.
Consequent upon the foregoing, the Judgment of the High Court of Ekiti State sitting at Ikere Ekiti; delivered on 20th October, 2011 in Suit No:- HCR/28/2005 is hereby set aside. And in its place, it is hereby ordered that the said suit be remitted to the Chief Judge of Ekiti State for reassignment to another Judge who shall hear and determine the suit without further delay.
There shall be no order as to costs.
MASSOUD ABDULRAHMAN OREDOIA, J.C.A.: I have read before now, the lead judgment just delivered by my learned brother, Uchechukwu Onyemenam, JCA. I am in full agreement with the reasoning and conclusion reached therein. Indeed, he has covered the issues canvassed in this appeal and I do not intend to add anything thereto. I also adopt the same as mine. In the premise, while Issue 1 as renumbered in the said lead judgment is resolved in favour of the respondents, Issues 2, 3 and 4 are resolved in favour of the appellants. I therefore also find that the appeal substantially succeeds. It is accordingly allowed by me. I also abide by all the consequential orders made therein, inclusive of the order regarding costs.
Appearances
Kayode Akinwumi Esq.For Appellant
AND
Bamidele Omotoso Esq with Rotimi Adabembe Esq
V.O. Amire Esq and Mrs M.O. AgbadaolaFor Respondent
