KUPOLUSI & ORS v. OWOEYE & ORS
(2020)LCN/14268(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Monday, June 08, 2020
CA/EK/70/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
- CHIEF EMMANUEL KUPOLUSI 2. MR. RAPHAEL KUPOLUSI 3. HIGH CHIEF BOLAJI ODEDELE (Joined By The Order Of Court) APPELANT(S)
And
- H.R.M. OBA AKIN OWOEYE (The Alafon Of Ilafon-Ekiti) 2. CHIEF ADEWALE OGUNTUASE 3. CHIEF KAYODE ADESUA (For And On Behalf Of Alafon-In-Council, Ilafor-Ekiti Except The 1st Defendant) RESPONDENT(S)
RATIO
THE LEGAL MAXIM NEMO DAT QUOD NON HABET
It is trite and fundamental principle of law that you cannot give what you don’t have (nemo dat quod non habet) See: SAMUEL ONONUJU & ANOR. VS. ATTORNEY GENERAL ANAMBRA STATE & ORS. (2009) LPELR–SC 29/2009, MR. TAORED MAJEOLOGBE VS. ALHAJI I.A.D. SOLARIN (2015) LPELR-23388(CA). PER ELECHI, J.C.A.
THE PURPOSE OF A NOTICE OF APPEAL
It is trite law that the purpose of a Notice of Appeal is to give the Respondent proper notice of the nature of the Appellant complaint against the judgment of the Lower Court. Hence, the Appellant cannot be allowed to formulate issue out of the blues as to do so will amount to taking the Respondent by surprise and such issue not flowing from any of the grounds of appeal is liable to be struck-out. See: NGERE VS. OKURUKET ‘XIV’ (2017) ALL FWLR (PT. 882) 1302 at 1330 Paras. C-D the Supreme Court per ARIWOOLA JSC held thus:
“The whole purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment appealed against. In other words, the purport of any ground of appeal is to avail the Court and the Respondent the opportunity of knowing the Appellant’s grouse against the judgment being appealed against.”PER ELECHI, J.C.A.
WHETHER OR NOT ISSUE FOR DETERMINATION MUST BE FORMULATED FROM A GROUND OR GROUNDS OF APPEAL
The law is trite that issue for determination must be formulated from a ground or grounds of appeal, as such, any ground(s) of appeal from which no issue was formulated or any issue for determination not derived from a competent grounds of appeal, such ground of appeal shall be deemed to have been abandoned and such issue(s) for determination shall be liable to be struck-out. See OLAIYA VS. STATE (2010) ALL FWLR (PT. 514) 1 at 7, DAVIES VS. THOMAS (2018) ALL FWLR (PT. 962) 1632 at 1641. PER ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal that originated from the Judgment of the High Court of Ekiti State, Ikole Judicial Division wherein Judgment was entered in favour of the Respondents as per their Amended Writ of Summons and Statement of Claim dated 11th April, 2016 and filed on the 19th day of April, 2016, while also dismissing the counter-claim of the 3rd Appellant.
The claims of the Respondents as per their Writ of Summons and Statement of Claim as follows:
(a) A DECLARATION that land in Ilafon-Ekiti is by communal holding and it is only the Land Allocation Committee set up by the Alafon-in Council to administer the communal land that has the responsibility, right and or can validly allocate land in Ilafon-Ekiti to the exclusion of any person whatsoever.
(b) A DECLARATION that the purported and unilateral allocation of communal land by the 1st Defendant to the 2nd Defendant at Omi Ogun area of Ilafon-Ekiti without recourse to the Land Allocation Committee set up by the Alafon in Council is contrary to the extant land allocation system in Ilafon-Ekiti and same is thereby irregular,
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wrongful, provocative, null and void.
(c) A DECLARATION that the allocation of two (2) plots of land to Pastor Mathew Owoeye by the Land Allocation Committee out of the communal land of Ilafon-Ekiti at Omi Ogun area of Ilafon-Ekiti is regular, proper, subsisting and valid.
(d) AN ORDER setting aside the purported allocation of Ilafon-Ekiti communal land at Omi Ogun Area, Ilafon-Ekiti by the 1st Defendant to the 2nd Defendant.
(e) AN ORDER of perpetual injunction restraining the Defendants either by themselves, their agents, servants, through them from trespassing or committing any further act of trespass on the land in dispute.
According to the Appellant the fact of this case flows the dispute over an area of land known, addressed and called Omi Ogun Area, Isan-Ekiti which is the boundary area between Ilafon-Ekiti and Isan-Ekiti which is owned by the family of the 3rd Appellant to the very knowledge of the 1st Respondent, His Royal Majesty Oba Akin Owoeye and the Alafon in Council.
The family of the 3rd Appellant over the years or from time immemorial has always exercised full rights of exclusive ownership over Omi Ogun Area Isan-Ekiti
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and appointed the 1st Appellant as their care taker or agent over their land at Omi Ogun Area Isan-Ekiti, to help them manage and control the land from intruders. The 1st Appellant’s mother hails from the family of the 3rd Appellant as the mother of the 1st Appellant came from Isan-Ekiti.
From the Record of Appeal, the Ilafon Community as a people Migrated from the Apole hills to settle down at their present location Ilafon-Ekiti in 1944. Historically, the Ilafon people then approached the Isan people through the mother of the 1st Appellant who came from Isan and the family of the 3rd Appellant gave Ilafon Community land where they are situated today. The 1st Appellant use his legs to walk with his parent form the Apole Hills down to the present day Ilafon-Ekiti. The 1st Appellant is one of the oldest men today at Ilafon-Ekiti. It is out of the kind heart of the family of the 3rd Appellant towards the 1st Appellant family and his mother being their daughter that prompted the family of the 3rd Appellant to give parcels of land to the 1st Appellant wherein the 1st Appellant gave to his son the 2nd Appellant at Omi Ogun Area Isan-Ekiti.
Also prior
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to the 1st Respondent becoming the Oba of Ilafon as Alafon of Ilafon-Ekiti he purchased two plots of land from the family of the 3rd Appellant known as Ijewi Jesa, Isan-Ekiti in 1977 through the 1st Appellant as agent of the 3rd Appellant’s family at Omi Ogun Area Isan-Ekiti. It is this area of land where the 1st Respondent bought two plots of land from in 1977 acknowledging its ownership and control to the 3rd Appellant’s family that 1st Respondent is now claiming to be Ilafon-Ekiti land because he is now an Oba.
The Appellants pleaded and gave evidence in support of the fact above, but the trial Court still held trespass against the Appellants and restricted the 1st and 2nd Appellants as bonafide Ilafon men from Ilafon Land and 3rd Appellant from his family land at Omi Ogun Area, Isan-Ekiti.
ISSUES FOR DETERMINATION
For the purpose of arguing this appeal, the Appellant from the grounds contained in the Notice of Appeal have formulated three issues for determination by this Honourable Court in this case viz:
1. Whether on the preponderance of evidence on record adduced by the parties, the Respondent proved act of ownership of
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the plots of land in dispute through any grant by Isan-Ekiti before declaring it as a communal land.
2. Whether on the Lower Court assessed the evidence, particularly Exhibit E put forward by the Appellants before arriving at the conclusion that Omi Ogun Area, being the area of land in dispute, belong to the Respondents.
3. Whether the Appellant have not proved their counterclaim at the trial Court to entitle them to the reliefs sought therein against the Respondents.
ISSUE ONE
Whether on the preponderance of evidence on record adduced by the parties, the respondents proved acts of ownership of the two plots of land in dispute through any grant by Isan-Ekiti before declaring it as a communal land.
This is an issue which bothers on whether on the preponderance of evidence on record adduced by the parties, the Respondents proved acts of ownership of the two(2) plots of land in dispute through any grant by Isan-Ekiti before declaring it as a communal land.
It is submitted that from the totality of the pleadings and evidence adduced by the Respondents, they are not entitled to the reliefs sought by them in the trial Court.
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The claimants claim that Ilafon peole migrated to their present area in 1944 with the concurrence of Isan-Ekiti community.
He further stated in paragraph 28 of their amended statement of claim that:
“The land purportedly allotted to the 2nd Defendant by his father (the 1st Defendant) and the two(2) plots of land duly allocated to Pastor Mather Owoeye are side by side in the same location at a place known and called Omi Ogun Area of Ilafon-Ekiti.”
The 1st Respondent testified and admitted that upon their arrival to their present location, they were granted land to settle by the people of Isan-Ekiti and that Omi Ogun Area where the disputed land is situate was not part of the land granted to them but rather belongs to Ijewi-Ijesha family of Isan-Ekiti. He therefore submitted that the learned trial Judge was wrong to have declared that the disputed land at Omi Ogun Area as a communcial land belong to Ilafon people. See also PARAGRAPH 18 of the 3rd DEFENDANT AMENDED WRITTEN STATEMENT ON OATH.
Accordingly, it is submitted that it is crystal clear that the Appellants had established the exact portion of land ceded to the Respondents
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before their arrival to settle. The Claimants on the other hand have failed to prove or plead the area granted to them but expressly admitted that it was not the entire land of Ijewi-Jesha family that was given to them. The failure of the Respondents to prove this makes their case bad. See AYANRU VS. MANDILAS LTD (2007) 10 NWLR (PT. 1043) 462.
The Appellants were able to prove their root of title and long possession on the land which the trial Court failed to consider, but rather gave title to the Respondents who could not establish their root of title. The Appellants sufficiently pleaded the identity of the land in dispute and its boundary men and gave evidence in support of same. See IDUNDUN VS. OKUMAGBA (1976) 9 – 10 SC 227.
The Respondent have not led any credible evidence to prove ownership of the dispute land through any of the five listed ways. The traditional evidence they sought to rely on did not avail them in any way because the family they claimed gave them the land for settlement had clearly testified that the land given to the Respondent does not extend to the disputed portion. He clearly stated the description and extent of the ceded
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land to the Respondents, and this was not controverted by Respondents neither did the Respondents lead any evidence to show that the land given to them extends to the disputed portion of land.
There is no evidence adduced by the Respondents throughout the proof of their case at the Lower Court which is sufficient evidence to confer them title to the disputed land.
Therefore the evidential burden place on the Respondents to entitle them to the reliefs sought have not been discharged at the trial. See Section 143 of the Evidence Act 2011 as Amended. ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (PT. 146) 578 at 505.
The burden of proving that the Appellants who are in possession of the land are not the true owners of the land rest on the Respondents at the trial and this they have failed to prove at the trial. They merely proved that a portion of land was ceded to them in 1944 but did not specifically and explicitly plead and proved the extent of the land that was granted to them. They were totally silent on this. It behoves on them to prove that the Appellants who are in possession of the land are not the true owner, which they have failed to do
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and urged the Court to so hold.
The 1st Appellant through glaring pleadings and compelling evidence established how he got to the land and how he gave two(2) plots to his son (2nd Defendant). He testified that the land is not a communal land of Ilafon-Ekiti but rather part of the family land of Ijewi Jesha family. Aside, it was controverted by both Claimants and Defendant that the 1st and 2nd Appellants are sons of Ilafon-Ekiti and are entitled by heritage to communal land in Ilafon-Ekiti.
Accordingly, the trial Judge erred in facts and law to have reached the conclusion that:
“I find no difficulty whatsoever in coming to a conclusion that the claimants are entitle to the first relief sought in their amended writ of summon and statement of claim”
because the Claimants were able to establish through their evidence and pleadings how they acquired two plots of land in dispute from the Ijewi Jesha family of Isan-Ekiti.
The Court is urged to resolve this issue in favour of the Appellants.
ISSUE TWO
Whether the Lower Court assessed the evidence, particularly Exhibit E put forward by Appellants before arriving at the
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conclusion that Omi Ogun Area, being the area of land in dispute, belongs to the Respondents.
It is submitted that Exhibit E being an invoice evidencing sale of land to the 1st Respondent at Omi Ogun Area on Ijewi Jesha family land in 1977 and which document was acknowledge by the 1st Respondent at the trial and tendered through him without objection is a conclusive proof that the land at Omi Ogun Area belongs to Ijewi Jesha family, and he himself personally purchased. Part of the land in 1977. The Appellants as Defendants be trial Court pleaded in their Amended Statement of defence filed on the 7th of December, 2016. It is trite that documents speak for itself, hence Exhibit E is enough evidence meant to speak for itself as per the contents. DODO VS. SALANKE (2006) 9 NWLR (PT. 986) 447 at 472.
Under cross-examination on the 30/1/2017, the 1st Respondent stated that Exhibit E (purchase receipt) of the land situate at Aleke Omi Ogun and no more at Omi Ogun which Learned Counsel contended that the contents of Exhibit E cannot be changed by oral evidence. See: BERENDE VS. USMAN (2005) 4 NWLR (PT. 944) 16 at 22, OGBE VS. ASADE (2009) 18 NWLR (PT. 1172)
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106 at 187.
A question was posed by the Appellant thus:
Can the 1st Respondent being the traditional Ruler of Ilafon-Ekiti purchase a piece of land at a cost at Omi Ogun Area from Ijewi Jesha family of Isan-Ekiti in 1977 when he claims Omi Ogun Area has been ceded to Ilafon-Ekiti in 1944. That by implication is someone purchasing what belongs to him.
Also can a party purchase a portion of land and later by claim to the entire land? See KANO VS. MAIKAJI (2011) 17 NWLR (PT. 1275) 139. On the basis of the above, it is therefore submitted that the trial Court failed to consider Exhibit E and other pieces of evidence adduced by the Appellants before arriving at its decision. See: ALHAJI ILIYASU UMAR VS BAYERO UNIVERSITY, KANO (1988) 4 NWLR (PT. 86) 85 at 92.
The Court is urged to hold that the Court erred by its failure to consider Exhibit E as an evidence against the Respondents before granting the reliefs of the Respondents.
Also to resolve this issue in favour of the Appellants.
ISSUE THREE
Whether the Appellants have not proved their counterclaim at the trial Court to entitle them to the reliefs sought therein against the Respondents.
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It is submitted that the Appellants successfully proved their counterclaims at trial Court and they are entitled to the reliefs sought in their counterclaim. The Appellants further submitted that the land granted the Ilafon Community within the Ijewi-Jesa land by the Ijewi-Jesa family of Isan-Ekiti does not extend beyond the primary school at Ilafon-Ekiti and that the claim of ownership being asserted by the Ilafon Community over the Ijewi-Jesa family land beyond the boundary of the Primary School allotted to them is irregular, wrong and invalid.
The Respondent according to learned counsel do not know the land for which they rushed to court and as such their claim ought to fail. See: Section 133(1) of the EVIDENCE ACT 2011 (As Amended), OKOYE VS. NWANKWO (2014) ALL FWLR (PT. 756) 471, FEDERAL MORTGAGE FINANCE LTD VS. EKPO (2004) 2 NWLR (PT. 856). The Appellants, it is contended successfully proved their title at the trial Court and also how they acquired the land in dispute from the 3rd Defendant now 3rd Appellant the said 3rd Defendant’s Amended Statement on Oath clearly established how the Appellants got into the land and how
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they subsequently acquired the two plots of land, the subject matter of the dispute in this case. In support of the statement in paragraph 28, the 3rd Defendant tendered an “Affidavit on Land Agreement” date 06/02/2002 and was admitted and marked Exhibit 1, the content of which entrusted the land of Ijewi Jesa family at Omi Ogun Area as a caretaker to help oversee all activities on the land. It is trite that document speak for itself. See: DODO VS. SALANKE (Supra).
It is contended that the Respondents merely pleaded in their Amended Statement of Claim that Ilafon-Ekiti constituted, Land Allocation Committee to allocate land to anyone interested in land in the community, and the Land Allocated Committee was constituted by Alafon-in-Council. The 1st Appellant, being the oldest person in Ilafon Community and the second in command to the 1st Respondent was not aware, how come he was not aware of the existence or formulation of Land Allocation Committee. However there was no evidence before the Court to this effect, when was the committee formed? Ordinary, there should be minutes of meeting where it was recorded, but same does not exist
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neither was it tendered. Who and who participated in the meeting? It is apparent that the Land Allocation Committee is sham and non existence at any point.
Learned counsel state that even without conceding that the Land Allocation Committee exists, there was no evidence tendered at the trial Court that the land in dispute was allocated 2nd & 3rd Respondents by the Land Allocation Committee. Throughout the case of the Respondents at the trial Court, there was no evidence that the Land Allocation Committee allocated any land to them, worst still there was nothing to show that the land in dispute occupied by the Appellants were the actual portion allegedly allotted by the 2nd and 3rd Respondents and contended herein. Meanwhile transfer of interest must be evidentially proven. It is therefore submitted that the trial Court erred in law and fact, not to have considered the counter claim of title of the Appellants despite having been sufficiently proved.
Furthermore, the trial Court erred when he held that:
“The Alafon-in-Council under the leadership of the (1st Claimant) set up allocation committee to allocate land to indigenes of Ilafon
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Community who may need the land.”
It is trite and fundamental principle of law that you cannot give what you don’t have (nemo dat quod non habet) See: SAMUEL ONONUJU & ANOR. VS. ATTORNEY GENERAL ANAMBRA STATE & ORS. (2009) LPELR–SC 29/2009, MR. TAORED MAJEOLOGBE VS. ALHAJI I.A.D. SOLARIN (2015) LPELR-23388(CA).
Learned Appellant counsel submitted that since the Respondents have failed to state the extent of the land to them by Ijewi Jesa family of Isan-Ekiti upon their migration, they can’t unilaterally meddle with the entire expanse of land beyond what was ceded to them at Community Primary School at Ilafon-Ekiti.
In conclusion, the Court is urged to uphold the argument and legal submissions together with the authorities cited and relied on by the Appellants and resolve the three issues formulated for determination in favour of the Appellants.
Consequently, the Court is urged to allow the appeal and set aside the judgment of the Lower Court.
On the other hand, the claim of the Respondents was that the land granted to Ilafon-Ekiti Community by Isan-Ekiti under the rulership of the then Onisan of
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Isan-Ekiti – Oba Adebiyi in 1944 extended to Omi Ogun Area and the said land is communally owned by the entire Ilafo Community and that no individual or family can claim exclusive ownership of any parcel of land in Ilafon unless same has been duly granted to such individual or family by the Land Allocation Committee.
Omi Ogun area is a vast land mass which was owned by different families in Isan-Ekiti prior to 1944 when Isan-Ekiti ceded the land to the people of Ilafon-Ekiti for settlement.
Omi ogun area being a very vast expanse of land, the upper part of it is called Aleke Omi Ogun or Oke Omi Ogun, and the land granted to Ilafon Community extends beyond the primary school at Ilafon to Omi Ogun Area. See: Paragraph 29 of the Consequential Amended Reply to Statement of Defence on Page 260 and Lines 11 and 12 of Page 331 of the Record of Appeal.
Due to the fact that the 1st and 2nd Appellants are being challenged by the Alafon-in-Council for wrongful allocation of Ilafon land without the concurrence of the Land Allocation Committee put in place by Alafon-in Council, the 1st and 2nd Appellants now went into a conspiratorial league with the
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3rd Appellant to claim that the area of the land in dispute and which the 1st Appellant wrongfully allocated to his son (the 2nd Appellant) is not part of the land ceded to Ilafon in 1944 but part of Isan-Ekiti Community land.
1st Appellant testified that he was given some pieces of land for his reward as a caretaker over the land in dispute and that himself and his son (2nd Appellant) built their houses on the land given to him.
The 1st and 2nd Appellants merely enlisted the support of the 3rd Appellant in a desperate attempt to wreck the boat against their own community (i.e. Ilafon-Ekiti) and to subtly cover up their wrongful act of allocation Ilafon-Ekiti Community land in flagrant disregard of the existing Land Allocation Committee put in place by Alafo-in-Council.
NOTICE OF PRELIMINARY OBJECTION
The Respondents filed a Notice of Preliminary Objection challenging the competence of the Grounds of Appeal filed by the Appellants.
The contention of the Respondents is to the effect that the grounds of Appeal filed and the particulars thereto are disjuncted, totally unrelated and unconnected. In other words, the particulars do not
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relate to, flow from, explain or support the grounds to which they accompanied.
ISSUES FOR DETERMINATION IN THE PRELIMINARY OBJECTION
The Respondents formulated the following issues for determination to wit:
(a) Whether the grounds of Appeal and their particulars can validly stand independent of each other.
(b) Whether particulars of errors arising from specific findings can validly support omnibus ground of Appeal.
It is trite law that the purpose of a Notice of Appeal is to give the Respondent proper notice of the nature of the Appellant complaint against the judgment of the Lower Court. Hence, the Appellant cannot be allowed to formulate issue out of the blues as to do so will amount to taking the Respondent by surprise and such issue not flowing from any of the grounds of appeal is liable to be struck-out. See: NGERE VS. OKURUKET ‘XIV’ (2017) ALL FWLR (PT. 882) 1302 at 1330 Paras. C-D the Supreme Court per ARIWOOLA JSC held thus:
“The whole purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant’s complaint against the judgment
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appealed against. In other words, the purport of any ground of appeal is to avail the Court and the Respondent the opportunity of knowing the Appellant’s grouse against the judgment being appealed against.”
The extant Notice of Appeal filed by the Appellants is dated and filed on the 29th day of December, 2017 and same contains two substantive grounds of appeal as well as the omnibus ground of Appeal.
On ground one, the Appellants are apparently challenging the decision of the Lower Court as it specifically relates to the Lower Courts’ evaluation of evidence in granting the first relief of the Respondents as contained in their Amended Writ of Summons and Statement of Claim.
The first relief in the Amended Writ of Summons is a declaratory relief which was merely asking the Court to declare generally that land in the entire Ilafon-Ekiti is by communal holding and that it is only the Land Allocation Committee that has the prerogative to validly allocate land to individuals in Ilafon-Ekiti.
It is submitted that the said relief and the evidence supporting same does not have anything to do with the issue as to whether the
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Appellants succeeded in proving their claim to the two(2) plots of Land located at Omi Ogun Area, Ilafon-Ekiti.
Particulars (i), (ii) and (iii) of ground one (1) of the Notice of Appeal talks about the two(2) plots of land in dispute and do not relate to the issues as to whether lands in Ilafon-Ekiti are communally owned which is the import of the first relief sought by the Respondents before the Lower Court. The issue of communal holding of land in Ilafon as prayed for in the Respondents’ first relief in their Amended Writ of Summons and Statement of Claim is distinct from the issue of ownership of the two plot of land in dispute as prayed for by the Respondents in Relief (C) of their Amended Writ of Summons and Statement of Claim.
That ground one of the Notice of Appeal and the supporting particulars are disjuncted. The particulars of the said ground one do not support the ground. The particulars having not flown from the ground that ground one of the Notice of Appeal is liable to be struck-out. The Court is urged to so hold. See: ABE VS. UNIVERSITY OF ILORIN (2015) EJSC (Vol.11) 146 at 163, OLEKSANDR VS. LONESTAR DRILLING COY LTD. (2015)
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EJSC (Vol. 17) 1 at 22, STANDARD MANUFACTURING CO. LTD VS. STERLING BANK PLC. (2015) ALL FWLR (PT. 796) 489.
Learned Respondent counsel stated that aside from the fact that particulars (i), (ii) and (iii) do not flow or support the ground one, particular (iv) of the Appellant’s ground one proceeded to extend the frontiers of the inconsistency in particular in relation to ground one as the said particular (iv) went ahead to support the decision of the lower Court that land in Ilafon-Ekiti is by communal holding.
This amount to approbating and reprobating on the part of the Appellants’ counsel. A party cannot be challenging a particular finding of fact in his ground of Appeal. The Court is urged to strike-out ground one in the Notice of Appeal. Also to strike-out ground two as it also caught in the same web with ground one.
The entire particulars in grounds two relate solely to the alleged failure of the lower Court to properly evaluate the Appellants evidence in proof of their claim to the ownership of the two(2) plots of land in dispute. It does not highlight the complaint in ground two which relate specifically to burden of proof.
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See: NGERE VS. OKURUKET ‘XIV’ (2017) ALL FWLR (PT. 882) 1302 at 1331 Paras. B-D.
As well, the Court is urged to treat ground two of the Notice of Appeal as defective and incompetent and consequently to strike-out same.
Even ground three which is the omnibus ground of appeal wherein the Appellants stated that:
“the whole Judgment of the learned trial Judge is against the weight of evidence.”
See:KASANDUBU VS ULTIMATE PETROLEUM LTD (2008) ALL FWLR (PT. 417) 155 at 173, SMITH ENG. CO LTD VS. NAKSH NIG. LTD (2017) ALL FWLR (PT. 914) 1150 at 1158.
From the foregoing, it is settled law that an Omnibus ground of Appeal cannot be used to challenge specific findings of fact as was done by the Appellants in the instant appeal wherein the Appellant’s counsel submitted two particular of error in support of the Omnibus ground of appeal on specific findings of fact by the lower Court.
It is submitted that this has rendered the Omnibus ground of Appeal incompetent and liable to be struck out.
In all, the Court is urged to resolve the preliminary objection in favour of the Respondent and hold that the grounds
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of appeal are disharmony unrelated and disconnected with their particulars and thereby rendering the grounds of appeal incompetent and liable to be struck-out.
Finally, the Court is urged to dismiss the Appellant’s appeal as being incompetent.
ISSUE FOR DETERMINATION
In the event that this Honourable Court regards and treats the Appellants grounds of Appeal as being competent and thereby overruling our instant preliminary objection thereto, the Respondent formulated the following issue for determination in the Appeal to wit:
“Whether the lower Court indeed failed to properly or improperly evaluated the evidence adduced before it by parties as to warrant interference with its decision by this Honourable Court.”
ARGUMENT OF THE ISSUE
It is submitted that the lower Court properly and painstakingly evaluated the evidence adduced before it by parties before arriving at its decision. There is no basis or any arising need for this Honourable Court to interfere with the decision of the lower Court.
In establishing their claims before the lower Court, the Respondents testified that the land in dispute form part of
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the land communally ceded to Ilafon-Ekiti Community in 1944 by Isan-Ekiti Community during the reign of Oba Adebiyi the then Onisan of Isan-Ekiti.
It is in evidence that Ilafon people migrated from Apole Ilafon to their present location. The present location of Ilafon-Ekiti formerly formed part and parcel of Isan-Ekiti Community until 1944 when same was freely and magnanimously ceded to Ilafo-Ekiti for settlement by Isan-Ekiti Community.
It is argued that since Ilafon people arrived at the same time at their present location, there is no single family or individual who can lay exclusive ownership claim to any part of Ilafon land as the land is communally or corporately owned.
Also that in other to avoid rancour and acrimony that may possibly attend struggle for land among the people of Ilafon-Ekiti, the Alafon-in-Council which comprises all the High Chiefs and which is the highest decision making body in Ilafon-Ekiti; in its wisdom set up a Land Allocation Committee to oversee allocation of land to interested members and non-members of Ilafon Community.
It was pursuant to the exercise of the power conferred on the Land Allocation Committee
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that two plots of land were allocated to one Pastor Mathew Owoeye an indigene of Ilafor-Ekiti.
It is the two(2) plots of land duly allocated to the said Mathew Owoeye that the 1st and 2nd Appellants took over unilaterally and on which the 1st Appellant had built his house with the active support of his father (the 1st Appellant) who wrongfully allocated the land to his son (the 2nd Appellant).
Learned counsel argued further that when the heat was becoming unbearable for the 1st and 2nd Appellants from Ilafon Community as to why the flagrant disregard for Land Allocation Committee which is in charge of land allocation in Ilafon-Ekiti, the 1st and 2nd Appellants desperately went into a conspiratorial league with the 3rd Appellant and came up with all sorts of cock and bull story line.
He contended that the evidence on record as supported by Exhibit B which is a letter dated 30th August, 2006 is to the effect that the father of the 3rd Appellant one J.O. Salako in 1991 appointed the 1st Appellant as a caretaker to oversee his personal farmland situate at Aleke Omi Ogun in Isan-Ekiti.
By the said letter, the authority granted by the said J.O.
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Salako to the 1st Appellant as an overseer of his said farmland was revoked on the account of gross misconduct by the 1st Appellant.
Throughout the evidence before the lower Court, no letter of re-engagement of the 1st Appellant by the said J.O. Salako to continue as caretaker was place before the lower Court. Neither was there any oral evidence too that the said J.O Salako later changed his decision in terminating the caretakership of the 1st Appellant of his farmland at Aleke Omi Ogun in Isan-Ekiti.
It is contended that so far there is no evidence on record that the son of J.O Salako (the 3rd Appellant herein) later engaged the 1st Appellant as caretaker or oversee of the same farmland of J.O. Salako after his demise.
It is submitted that there is no evidence place before the lower Court that Ijewi-Jesa people ever engaged the 1st Appellant as caretaker of their farmland. The only credible evidence before the lower Court and which is contained in the record is that the 1st Appellant was appointed as caretaker by J.O. Salako and the tone of the appointment is explicit in paragraph one of Exhibit B.
Further argument of the learned counsel
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stated that if the land over which the 1st Appellant was appointed a caretaker does not form part of the land granted to Ilafon Community and it is from part of the land over which the 1st Appellant was appointed a caretaker in Isan-Ekiti Community that some pieces were purportedly given to him to build his house and that of his son, the question begging for an answer is that how can the 1st and 2nd Appellants (save and except by magical means) build their houses at Ilafon-Ekiti as tesfied by then over pieces of land that are located in Isan-Ekiti which is entirely another community or town?
That in view of foregoing pieces of evidence especially coming from the Appellants themselves, it is simply commonsensical to conclude that the parcel of land on which the 1st and 2nd Appellants built their houses and which is the disputed land in this suit forms part of the land of Ilafon-Ekiti Community ceded by Isan-Ekiti Community in 1944.
The Appellants throughout the evidence before the lower Court did not deny the existence of Land Allocation Committee in Ilafon-Ekiti as set up by the Alafo-in-Council to allocate land to members of the community.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Against the above premises, any allocation of land in Ilafo-Ekiti since the inception of the Committee without the concurrence and or knowledge of the Land Allocation Committee will be irregular and same cannot be valid.
It is submitted that contrary to the argument and submission of the Appellants’ counsel, the lower Court properly and rightly evaluated the evidence adduced before it before holding that the Respondents are entitled to the first relief sought in their Amended Writ of Summons and Statement of Claim.
Also submitted is that the Judgment of the lower Court unassailable with respect to who bears the burden of first proving their claim between the Appellants and the Respondents herein.
As well, it is submitted that it is the duty of the Appellants to show this Honourable Court that:
“What was the evidence before the trial Court, whether the trial Court accepted or rejected any evidence upon the correct perceptions, whether the trial Court correctly approached the assessment of the evidence before it and place the right probative value on it, whether the trial Court used the imaginary scale of justice to weigh the
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evidence on either side and whether the trial Court appreciated upon the preponderance of evidence which side the scale weighted having regard to the burden of proof.”
Furthermore the Appellants have failed to show in their brief of Argument these conditions, as they specifically relate to the alleged non or improper evaluation of evidence of parties by the lower Court before holding that the Respondent are entitled to the first relief in their Amended Writ of Summons and Statement of claim. See ANCHOR MARINE & OIL LTD VS. ALUMINUM SMELTER COY OF NIG. (2019) LPELR-47209 OZAH VS. EFCC (2018) ALL FWLR (PT. 953) 222 at 225.
It is argued that the Appellants have the burden duty to identify the evidence that was not evaluated or improperly evaluated. See ZACCALA VS. EDOSA (2018) ALL FWLR (PT. 926) 1 at 26 (SC), NKEBISI VS. STATE (2010) ALL FWLR (PT. 521) 1407 at 1422, (2010).
The Appellants, it is submitted failed to relate the issues formulated in the Appellants brief of argument to any of the grounds of Appeal and this is fatal to the arguments and submissions canvassed on those issues as the implication is that no valid issues are
29
formulated from the affected grounds of Appeal. See: IBRAHIM VS. STATE (2017) ALL FWLR (PT. 898) 1, COMPACT MAINFOLD & ENERGY SERVICES VS. PAZAN SERVICES NIG. LTD (2018) ALL FWLR (PT. 951) at 1814.
The law is trite that issue for determination must be formulated from a ground or grounds of appeal, as such, any ground(s) of appeal from which no issue was formulated or any issue for determination not derived from a competent grounds of appeal, such ground of appeal shall be deemed to have been abandoned and such issue(s) for determination shall be liable to be struck-out. See OLAIYA VS. STATE (2010) ALL FWLR (PT. 514) 1 at 7, DAVIES VS. THOMAS (2018) ALL FWLR (PT. 962) 1632 at 1641.
It is submitted that ground two is purely an issue of Law and it strictly related to burden of proof and nothing more and none of the issues formulated by the Appellants’ counsel address the finding of the Court as regards the burden of proof rightly placed by the Appellants before the lower Court.
The purpose of issue for determination is to identify what is in issue in the grounds of appeal to be argued, hence, issue for determination in an appeal must fall
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within the scope of the grounds of appeal as contained in the notice of appeal. See: ABE VS. UNIVERSITY OF ILORIN (Supra) OKOYE VS. NWANKWO (2014) ALL FWLR (PT.756) 471 at 499, NWOSU VS. OKOYE (2008) ALL FWLR (PT. 451) 815, FALOMO VS. ONAKANMI (2006) ALL FWLR (PT. 298) 1242 at 1242-1257, OLODO VS. JOSIAH (2011) ALL FWLR (PT. 578) 1897 at 1923.
It is submitted that none of the three issues formulated by the Appellants’ counsel in the Appellants’ Brief of Argument flows from or could be linked with ground two (2) of the Notice of Appeal.
Ground two (2) is basically challenging the findings of the lower Court wherein the Court rightly held that base on the nature of the defence put forward by the Respondents, they shall bear the burden of first proving their case.
This issue was not raised in the Appellants’ Brief of Argument and by application of Law, the Appellants are deemed to have abandoned ground two (2) of the Notice of Appeal.
What is more, the Appellants Counsel did not formulate any issue for determination from ground one of the Notice of Appeal, as none of the proliferated issues formulated by the Appellant is
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derived from ground one.
It is contended that a ground of Appeal to which issue for determination is not formulated is deemed abandoned. See: OSADOLOR VS. STATE (2017) ALL FWLR (PT. 895) 1581 at 1623. Also Appellants counsel failed to formulate any issue for determination in support of ground one of the Notice of Appeal neither was any valid argument preferred in support of the said ground, hence the said ground is deemed abandoned. See: OLAIYA V STATE (2010) ALL FWLR (PT. 514) 1 at 7.
The law it is submitted is trite that an interfere with the finding of a trial Court unless it is shown by the Appellant that the decision is unreasonable and perverse and that same resulted in a miscarriage of Justice, and the Appellate Court will also not substitute its own views for that of the trial court. See: ADEGBITE VS. STATE (2018) ALL FWLR (PT. 951) 1855 at 1884 (SC).
The lower Court painstakingly evaluated the evidence adduced by both parties on the record starting from page 380-391 of the Record of Appeal and found that the Statement of Defence and counter-claim of the Appellants introduced new issues which modified the incidence of burden of proof
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thereby thrusting the burden of first proof on the Defendants in respect of the fact pleaded by them.
Having admitted the claim of the Claimants that the land currently being occupied by Ilafon Community originally belonged to Isan-Ekiti but that in 1944, the said land was ceded to Ilafon by the Isan Community through the then Onisan of Isan-Ekiti Oba Adebiyi, the Appellants went further to claim that it was the family of the 3rd Appellants that specifically and unilaterally gave Ilafon Community the land in 1944 and that in 1975 the 3rd Defendants family again unilaterally extended the land earlier granted to Ilafon Community.
The Appellants are claiming exclusive ownership of the land in dispute as against the communal claim of the Respondent. The law is well settled that there is a rebuttable presumption in favour of the Respondents’ communal holding of land in Ilafon.
Learned counsel argued that it is the sole duty of the Appellants to prove that the land in dispute belongs to them exclusively. See: FALOMO VS. ONAKAMNI (2006) ALL FWLR (PT. 298) 1242, NWOSU VS. OKOYE.
The law is trite that for a party, who claim declaratory reliefs
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to succeed, such a party must adduce cogent, credible and reliable evidence and such a party cannot rely on the weakness in the case of the opposition. See: S.S. LTD VS. ADAMU OLADIRAN (2016) ALL FWLR (PT. 836) 520, NYESOM VS. PETERSIDE (2016) ALL FWLR (PT. 842) 1573.
On the omnibus ground of appeal, it is submitted that it is incompetent deemed abandoned and liable to be struck-out having not formulated any competent issue for determination therefrom and urged the Court to so hold;
From the foregoing arguments and submissions, it is submitted that the Appellant do not have a competent ground of appeal or issue for determination upon which the appeal can be decided.
On the nature of ground(s) of appeal and the consequences of issue(s) for determination flowing therefrom. See: STANDARD MANUFACTURING CO. LTD. & ANOR VS. STERLING BANK PLC. (2015) ALL FWLR (PT. 796) 427 at 488.
He urged the Court to dismiss the appeal.
The Appellants on the other hand filed a reply brief to the preliminary objection of the Respondents dated 10th April, 2019 and filed on 10th February, 2020. In the said Reply brief, the Appellant went into another voyage
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of rearguing his Appellants Brief of argument in breach of the Rules of this Court. As a result, I shall discountenance same and it will not form any basis in the consideration and resolution of issues in this appeal.
RESOLUTION OF ISSUES
The first issue to resolve is the preliminary objection of the Respondent urging the Court that the Three Grounds of Appeal be struck-out and the appeal be dismissed in its entirely without hearing it. The consideration of this preliminary objection is necessary because an Appellate Court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not, it should not be ignored. This is because it is a cardinal principle of the Administration of Justice to let a party know the fate of his application whether properly brought or not. See: NWANTA VS. ESUMEL (1993) 8 NWLR (PT. 563) 650, TAMBIO LEATHER WORKS LTD VS. ABBEY (1998) 12 NWLR (PT. 579) 548.
The Respondents filed a notice of preliminary objection
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challenging the competence of the grounds of appeal filed by the Appellant. The contention of the Respondents is to the effect that the grounds of appeal filed and the particulars filed thereto are disjuncted, totally unrelated and unconnected. In order words, the particulars do not relate to, flow from, explain or support the grounds to which they accompany.
To argue the preliminary objection, the Respondent formulated the following issues for determination:
(a) Whether the grounds of appeal and their particulars can vividly stand independent of each other.
(b) Whether the particulars of error arising from specific findings can validly support omnibus grounds of appeal.
The extant notice of Appeal filed by the Appellants is dated and filed on the 29th day of December, 2017 and same contains two substantive grounds of appeal as well as the omnibus ground of appeal:
(a) Whether the grounds of Appeal and their particulars can validly stand independent of each other.
(b) Whether particulars of errors arising from specific findings can validly support omnibus ground of Appeal.
On ground one, the Appellants are apparently
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challenging the decision of the lower Court as it specifically relates to the lower Courts’ evaluation of evidence in granting the first relief of the Respondents as contained in their Amended Writ of Summons and Statement of Claim.
The Court is urged to strike-out ground one of the notices of appeal. Also to strike-out ground two (2) solely to the alleged failure of the lower Court to properly evaluate the Appellants evidence in proof of their claim to the ownership of the two plots of land in dispute. In addition, it does not highlight the complaint in ground two (2) which relate specifically to burden of proof. See: NGERE VS. OKURUKET XIV (2017) ALL FWLR (PT. 882) 1302 at 1331.
In reply, the Appellants stated that the three issues raised and argued by the Appellants in their Brief of Argument were all raised from the grounds as contained in Appellants Notice of appeal. He submitted that the Respondents argument on the preliminary objection is baseless and a voyage of self-help to deceive the court. The Court is urged to disregard same and strike-out the preliminary objection so that the appeal can hear on its merit.
Before going into
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the merits of the substantive appeal, it is better here and now to determine the preliminary objection raised one way or the other. Worthy of note is that a preliminary objection can only be taken against the hearing of an appeal and not against the competence of the brief of a party to the appeal. This is so because the purpose of a preliminary objection is to contend that the appeal is fundamentally defective or incompetent. If it succeeds, the hearing of the appeal abates. See: ODUNUKWE VS. OFOMATA 44 NSCQR 379, NEPA VS ANGO (2001) 15 NWLR (PT. 737) 627. However, highlighting the state of the brief at the hearing of the appeal would have been enough. I do not see any merit in the argument of the Respondent in the preliminary objection. It is hereby over ruled and consequently struck-out.
On the substantive appeal, same shall be considered and determined alongside the issues for determination as formulated by the Appellant thus:
(1) Whether on the preponderance of evidence on record adduced by the parties, the Respondent proved act of ownership of the plots of land in dispute through the grant by Isan-Ekiti before declaring it as a communal land.
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(2) Whether the lower Court assessed the evidence particularly Exhibit E put forward by the Appellants before arriving at conclusion that Omi Ogun Area, being the Area of Land in dispute, belong to the Respondents.
(3) Whether the Appellants have not proved their counter-claim against the Respondents.
ISSUE 1
“Whether on the preponderance of evidence on record adduced by the parties, the Respondent proved act of ownership of the plots of land in dispute through any grant by Isan-Ekiti before declaring it as a communal land.”
It is submitted with respect to the Respondents’ brief of argument that the trial Court failed to properly evaluate and give probative value to the pleadings and evidence plead before it by parties and particularly the evidence of the Appellants as per the record of appeal.
And that from the Amended statement of defence of the Appellants as defendants as their evidence under cross-examination were ignored by the trial Court. Even the Respondents it is submitted failed to prove the boundary or boundaries of the land occupied by the Ilafon people since 1944 till date nor the description
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of the land in dispute.
The Respondents on their own testified that the land in dispute form part of the land communally ceded to Ilafon-Ekiti Community in 1944 by Isan-Ekiti Community during the reign of Oba Adebiyi, the then Onisan of Isan-Ekiti. Hitherto it has been established that the Ilafon Community as a people migrated from the Apole Hills to settle down at their present location Ilafon-Ekiti in 1944.
However, it appears from the pleadings of the Respondents as claimants and their witnesses do not know and are unable to prove the description of the land in dispute as exhibited here under:
Under cross-examination, Chief Wale Oguntuase the PW2 of the respondents had this to say:
“We did not state the boundaries of the disputed land because the land given to us was without restriction”.
PW4 one Pastor Mathew Olumide Owoeye had this to say under cross-examination.
“I do not know the exact size of the land granted the Ilafon Community by Isan-Ekiti.”
My Noble Lords, it is clear that from the Pleadings and Evidence of the respondents that the respondents never knew the land granted Ilaforn-Ekiti people
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in 1944 by the people of Isan-Ekiti.
The Appellants pleaded their act of possession and ownership of the land in dispute, particularly from Isan-Ekiti, Ijewi Jesa family of the 3rd Appellant from time immemorial before 1944 coming of the Respondents had a farm and a traditional shrine o the land now in dispute which they never gave to Ilafon-Ekiti Community in 1944 till date as they could not have given their traditional shrine to anybody.
Appellants pleaded very clearly their act of possession and ownership of the land in dispute, particularly the family of the 3rd Appellant from Isan-Ekiti, Ijewi Jesa family the original owners of the land occupied by Ilafo-Ekiti from 1944 till date. It was pleaded that the family of the 3rd Appellants from time immemorial before 1944 coming of the Respondents had farm and traditional Shrine on the land now in dispute which they never gave to Ilafon Ekiti Community in 1944 till date as they could not have given their traditional Shrine to anybody. In paragraph 13 of the Amended Statement of the defendants, the Appellants pleaded as follows:
“The land given to Ilafon Community in 1944 heby t Ijewi Jesa
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family of Isan Ekiti was on the right side of Ayeded Isan Road when coming from Ayede Ekiti and the land extended inward up to the Esu-Ogun shrine which belongs to Ijewi Jesa family. The distance from the road to Esu Ogun Shrine is lesser that a quarters of a kilometre.”
The Appellants pleaded and gave evidence in accordance with their pleading but the Court failed and or neglected to evaluate same Exhibit E (the purchase receipt) of two(2) plots of land by the 1st Respondent became the Oba of Ilafon Ekiti. The said Exhibit shows clearly that it is the family of the 3rd Appellant that Omi Ogun Area belongs to the Ijewi Jesa family of the 3rd Appellants that sold the two(2) Plots of land at Omi Ogun area to the 1st Respondent. That was how the 1st Respondent entered Omi Ogun Area. Inspite of the above the lower Court ought to have considered and attach weight to Exhibit E after admitting same in evidence wherein he said thus:
“Photocopy of invoice of J.O. SALAKO Enterprises issued in the name of the claimant and dated 8/8/1977 evidencing the purchase of two plots of land on the Ijewi Jesa family land at Omi Ogun Area of Isan Ekiti is
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received in evidence under cross-examination of PW1 without objection and marked as exhibit E.” Exhibit E speaks for itself especially on the contents of such document as the best proof of same. See DODO VS. SALANKE (2006) 9 NWLR (PT. 986) 447 at 472, BERENDE VS. USMAN (2005) 4 NWLR (PT. 944) 16 at 22, OGBE VS. ASADE (2009) 18 NWLR (PT. 1172) 106, 187. Inspite of the quality of Exhibit E, the Trial Court failed to consider or attach weight to Exhibit. Even in the ordinary sense of it, a party cannot purchase a portion of land and later lay claim to the entire land. See KANO VS. MAIKAJI (2011) 17 NWLR (PT. 1275) 139. The Trial Court therefore erred in law in not considering and attaching weight to Exhibit E. See ILIYASU UMAR VS BAYERO UNIVERSITY, KANO (1988) 4 NWLR (PT. 86) 85 at 92. After all, it is trite that a purchase of land can be proved by a purchase receipt or an agreement for a sale on any act that shows that such a transaction did take place. See ADEPATE VS. BABATUNDE (2002) 4 NWLR (PT. 756) 99, AMINU VS. OGUNYEBI (2004) 10 NWLR (PT. 882) 457.
So, I do not seem to agree with the Respondents that the lower Court properly and rightly
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evaluated the evidence adduced before it and before holding that the Respondents are entitled to their first relief sought in their Amended unit of Summons and the Statement of claim and I so hold. Also not considered or evaluated by the trial Court is the long possession and occupation of the Appellants on the land in dispute, the boundary neighbours and the identity of the land in dispute.
With this state of affairs, the Court of appeal can exercise its appellate Jurisdiction and make proper findings. In the case of OGUNLEYE VS. ONI (1990) LPELR-2342 (SC), the Supreme Court per WALI JSC hold:
“With the evidence of both sides to the dispute particularly that of the defendant/Respondent, which the learned trial Judge had failed to consider and evaluate, the Court of Appeal has a duty as it did to make proper finding. See CHRISTOPHER OKORO VS. EUNICE UZEKA (1958) 4 SC 77, FASHANU VS. ADEKOYA (1974) 1 ALL NLR (PT. 1) 35 and ABUSOMWAN VS. MERCANTILE BANK NIG. LTD. (1987) 3 NWLR (PT. 60) 196.”
See also ALHAJI UMAR VS. BAYERO UNIVERSITY, KANO (1988) 4 NWLR (PT. 86) 85 at 92.
Issues 1 and 2 are hereby resolved in favour of the Appellants.
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ISSUE 3
“Whether the Appellants have not proved their counter-claim at the trial Court to entitle them to the reliefs sought therein against the Respondents.”
Under this issue, I must say that I have considered the submission of both learned counsel to the parties vis-a-vis the record of appeal and the prevailing law. It is settled law that a counter-claim is a claim which must be proved to the satisfaction of the Court as required by law. The onus of proof which lies on the plaintiff to prove his claim is also on the defendant to prove the averments in his counter-claim against the plaintiff on the balance of probabilities and to succeed on the strength of his case. A counter-claim is regarded as a separated and district from the main claim. See AWOSUNLE & ANOR VS. FAGBEMI & ANOR (2011) LPELR-8912, SHITTU VS. FASHAWE (2005) 14 NWLR (PT. 946) 671, ZENITH BANK PLC. & ANOR VS CHIEF DENNIS EKEREUWEM & ANOR (2011) LPELR-5121.
The above stated principle was properly enunciated by this Court per GARBA, JCA in the case of NWAENANG VS. NDARAKE & NDARAKE & ORS (2013) LPELR-20720 Page 41, wherein His
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Lordship expatiated as follows:
…”the law is that for purposes of the rules of pleadings and proof, a Counter-Claim of a plaintiff and the party against which the Counter-Claim was made, becomes the defendant in respect of the Counter-Claim.
The High Court Rules do not contain provisions on how the proof counter-claim is to be made or defended except that each party owes the burden of proving any claim he makes against another, whether as a plaintiff in the main claim or as a Counter-Claimant, in a Counter-Claim. Because as stated earlier. A Counter-Claim is a Cross or Independent action, the pleadings thereof take the place of statement of Claim and is Governed by the Rules of pleadings by which the defendant automatically assumes the position of a plaintiff for the purpose of proof.”
See HAIDO VS. USMAN (2004) ALL FWLR (PT. 201) 1765 at 1781, IGE VS, FARINDE (1995) NWLR (PT. 354) 42.
Thus in the instant case, both the Appellant and the Respondent are saddled with the burden of establishing on the preponderance of evidence or balance of probability, their superior title to the land in dispute to make them entitled to the
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declaration of the Court in their favour.
After a careful consideration of the evidence, issues for determination of this appeal and the legal arguments in support thereof, it is my observation that the parties are not ad idem on the exact location and or identity of the land allocated to the Ilafon Community as a people when they migrated from the Apole Hills to settle at their present location at Ilafon-Ekiti in 1944 through traditional evidence. This is the divergence and aspect that needs to be resolved.
It is now settled and elementary in law that it is the primary function of the Trial Court to admit, evaluate, analyze and make findings on evidence adduced before it by the parties. Thus an Appellate Court is generally enjoined not to interfere with the findings of the Trial Court which was arrived at after a proper analysis of the evidence presented before it by the parties; both oral and documentary. Indeed the Trial Courts findings are generally deemed proper, correct and acceptable because it has the opportunity of observing the demeanour of the witness(s) that appeared before it, appreciate the arguments of counsel to both parties in
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respect of the evidence adduced before it and after a proper analysis and evaluation arrives at its decision. See OYADIJI VS. OLANIYI (2005) 5 NWLR (PT. 919) 561 at 576, OYADARE VS. KEJI (2005) 7 NWLR (PT. 925) 571 and NTEOGWUILE VS. OTUO (2001) 16 NWLR (PT. 738) 58.
The above notwithstanding, this Court in some exceptional circumstances many interfere with the findings of the Trial Court under the following instances among others:
(a) Whether the Trial Court has not made a proper case of the opportunity of seeing and hearing the witness at the Trial.
(b) Where the Trial Court has draw wrong conclusion from accepted credible evidence.
(c) Where the Trial Court has taken erroneous view of the evidence adduced before it or
(d) Where the Trial Courts findings are perverse, that is, the findings do not flow from the evidence adduced and admitted on record, or that the findings cannot be justified or supported by evidence on record.
On the other hand, this Court is empowered in some deserving cases to assume the responsibility of the Trial Court in hearing a case or evaluating evidence adduced by parties in order to meet the Justice
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of the case.
In the instant case, the Appellants case was dismissed because the Trial Court erred in law by not considering and giving into effect Exhibit B (purchase receipt) amongst others.
I have critically examined the said Exhibit B vis-a-vis the evidence elicited from the parties and placed on record before this Court. I do not seem to agree with Respondents contention that the land in dispute was part of a communal land of Isan-Ekiti.
From the pieces of evidence already highlighted above in the course of this Judgment and pursuant to Section 15 of the Court of Appeal Act 2016, I hereby place myself in the position of the learned Trial Judge and after a proper consideration and evaluation of the evidence adduced on record by both parties, I hereby find that the Appellant has successfully established his claim on the balance of probability. Thus this issue is resolved in favour of the Appellant.
Having resolved the issues distilled for the determination of this appeal in the manner stated above, this appeal is hereby found by me to be meritorious and it is accordingly allowed. Thus the Judgment of the High Court of Ekiti State, Ikole
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Judicial Division in Suit No. HCL/17/2014 delivered, is hereby set aside.
In its stead, the Counter-Claim of the Appellant is adjudged as having succeeded in the relief sought.
Appeal allowed.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance, the lead judgment just delivered by my learned brother PAUL OBI ELECHI, JCA. I agree with his reasoning and conclusions.
I am also of the view that the Counter-Claims of the Appellant ought to succeed.
I also allow the appeal.
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Appearances:
C.O. Omokhafe Esq. For Appellant(s)
Dr E. k. Adetifa with him,
A.A. Ejere Esq.,
S.O Dada Esq. For Respondent(s)