MADAM LANTOUN OJEBODE & ORS V. AKEEM AKANO & ORS
(2012)LCN/5546(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of July, 2012
CA/I/101/2005
RATIO
LAND LAW: ON WHOM LIES THE BURDEN OF PROVING TITLE TO LAND
It is well established that a plaintiff seeking for declaration of title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing of such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case. PER ADZIRA GANA MSHELIA, J.C.A
LAND LAW: WAYS OF PROVING TITLE TO LAND
It had, equally, been stated in a plethora of cases that for a plaintiff to succeed in such a case, he could prove his ownership of the said land or title therein through any of the five different ways long entrenched by the Supreme Court for proving the same, that is to say:-
(1) By traditional evidence
(2) By production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more Years old produced from proper custody.
(3) By positive acts of ownership such as (selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough to warrant the inference that the person is the true owner;
(4) By acts of long possession and enjoyment of land,
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute.
See Idundun v. Okumagba (1976) 9 – 10 SC 227, Alli v. Alesinloye (2000) FWLR (pt.15) 2610 at 2632 paragraphs 3- D and Queen v. Uche (1994) 6 NWLR (pt.350) 529 at 550 paras G-H. PER ADZIRA GANA MSHELIA, J.C.A
LAND LAW: INGREDIENTS OF PROVING TRADITIONAL HISTORY
It is trite that traditional history is one of the recognised ways of proving title to land as laid down in classicus case of Idundun v. Okumagba (supra) 227. It is also settled law that a plaintiff whose claim for title to land as in this case is founded on traditional history must plead and prove the following facts by credible, cogent and reliable evidence:-
(1) who founded the land
(2) how he founded the land and
(3) the particulars of the intervening owners through whom he claims.
See Dike v. Okoloebo (1999) 19 NWLR Pt. 623) 359 at 363, Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745 at 782 – 783 and Igbojimadu v. Ibeabuchi (1998) 1 NWLR (pt.533) 179 at 190 – 191 paras H-B. PER ADZIRA GANA MSHELIA, J.C.A
EVIDENCE: BURDEN OF PROOF IN CIVIL CASES
It is trite that he who asserts has the burden to prove the assertion. It is to be noted also that the burden of proof in civil cases is not static. PER ADZIRA GANA MSHELIA, J.C.A
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. MADAM LANTOUN OJEBODE
2. MUFUTAU OJEBODE
3. SAKA DAIRO
4. FATAI DAIRO
(On behalf of themselves and Aribiyan/Olupiya family) Appellant(s)
AND
1. AKEEM AKANO
(Substituted for Alhaji Raimi Akano)
2. WASIU AKANO
(Substituted for Lasisi Akano)
3. OLANIYI AKANO
(Substituted for Rasaki Akano)
(for themselves and on behalf of Idowu Akinbiyi family) Respondent(s)
ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment): The respondents, who were the Plaintiffs in this appeal instituted this suit at the High Court of Justice Ibadan claiming against the appellants as follows :-
(i) “Declaration that the plaintiffs and other members of Idowu Akinbiyi family of Akinbiyi Arijo family compound of NW1/68A, Agbeni, Ibadan are the joint owners of the land/house containing rooms and shops situate, lying and being at NW1/68A, Agbeni, Ibadan to the exclusion of the Defendants and other members of Aribiyan/Olupiya family compound, Oke Eleta, Ibadan.
(ii) Injunction restraining the Defendants and all other members of the Aribiyan/Olupiya family, their servants, agents and privies from claiming any rights over the said land/house containing rooms and shop situate, lying and being at NW1/684 Agbeni, Ibadan.
The appellants who were defendants filed a statement of defence and counter-claim. By their 2nd Further Amended statement of Defence and counter-claim filed on 10th November, 2000, they counter-claimed against the respondents as follows:-
(1) Declaration that the title of the house in dispute is vested in the defendants/counter-claimants as family property.
(2) A declaration that the Defendants/Counter-Claimants are entitled to the right of Occupancy in respect of the land in dispute situate at NW1/68A Agbeni Street, Ibadan more particularly described.
(3) A declaration that the breaking of the glass inscription on the house in dispute referred to in paragraph 2, above by the 1st plaintiff is wrongful.
(4) A perpetual injunction restraining the plaintiffs their servants, agents or howsoever called from further interfering with the defendants title to the land in dispute whether by harassing their tenants or wrongful collecting or attempting to called any rents from the said tenants:
The case of the plaintiffs/respondents was that the property in dispute which was and is still within Akinbiyi Arijo compound devolved on the respondents under native law and customs, having been built by one of the sons of Akinbiyi Arijo, the founder of the compound from whom the respondents descended, The aforesaid Akinbiyi, one of the sons of Akinbiyi Arijo, the founder of the compound several years ago had three children, namely, Taiwo, Kehinde and Idowu. It was this Idowu who built the house in dispute, It was common ground between the parties that this Idowu Akinbiyi went to Aribiyan/Olupiya family of Oke-Eleta, Ibadan to which the Appellants belonged to marry one Madam Osunfunke. The brother of Osunfunke called Ologunde had only one child called Ojebode from Elekunde, his wife. This Ojebode was only six (6) months old when Ologunde died, Elekunde, died and Ojebode had to be brought to live with Osunfunke, the wife of Idowu Akinbiyi in this house now in Akinbiyi Arijo’s compound where Ojebode grew up. Osunfunke had a child for Idowu Akinbiyi called Oyalade. Osunfunke persuaded this Oyalade to marry the mother of Ojebode called Elekunde who had Abegunde and Abegunrin for Oyalade. Abegunde died without issue while Abegunrin beget Olatunji Akano, the father of the plaintiffs upon whom the property now in dispute devolved after the death of Akano. These facts were pleaded by the respondents in paragraphs 2, 5, 10, 11 and 12 of the statement of claim which the appellants admitted.
The appellants’ case on the other hand was that Agbeni Area where the land in dispute is situated was founded by a great warrior one Taiwo Agbeni who first settled on the land. It is the case of the appellants that Agbeni granted part of the land to several people including Bankole Olubode, Ikolaba, Lemomu, Olosu, Akinbiyi Arijo and Pa Dairo Ojebode.
The appellants also alleged that one Idowu Akinbiyi married Osunfunke daughter of Ologunde Obagade from Aribiyan Olupiya family Ibadan. The said Osunfunke and Ologunde were born of the same mother and father. When Ologunde died, he left his wife Elekunde and a child named Ojebode. Following the death of Ologunde, Osunfunke brought Elekunde and Ojebode to Idowu Akinbiyi compound and ensured that her son Oyelade later married Elekunde while Ojebode grew up in Idowu Akinbiyi’s compound. The appellants alleged that the land in dispute was granted to Pa Ojebode by Taiwo Agbeni and that it was Fatokun, who was the head of Idowu family who led Ojebode to Agbeni for the grant of the land in dispute. The said Pa Ojebode presented on request by Agbeni, a bottle of “Gin” and after which Agbeni led Ojebode and Fatokun to the land in dispute and gave it to Pa Ojebode. Pa Ojebode erected a house on the land. The house was not properly roofed. Dairo Ojebode, the son of the late Pa Ojebode who became a successful trader pulled down the building in 1935. That the said Dairo fixed a glass at the entrance of the said building with the inscription “DAO Ojebode Awamaridi Ise Olodumare, Inu mimo nigbe ninu Alijona” within it. The appellants also alleged that several of their ancestors were buried on the land in dispute. Sometime in 1992, the respondents went to the land in dispute and destroyed the glass inscription placed on the land/house.
The appellants reported to the police who arrested the father of the 1st respondent and arraigned him in court. The appellant pleaded that in suit No. 1/36/1951, the building in dispute was adjudged to be built by late Pa Ojebode.
Trial commenced. Plaintiffs/respondents called five witnesses and tendered some exhibits. The Defendants/Appellants on the other hand called six witnesses and also tendered exhibits. At the close of evidence, learned counsel to the parties addressed the court. The learned trial judge M.O. Bolaji-Yusuff J in a considered judgment delivered on 18th December, 2001 granted all the Plaintiffs/Respondents reliefs and dismissed the counter-claim of the defendants/appellants.
Dissatisfied with the judgment, appellants lodged appeal to this court vide Notice of Appeal filed on 29/01/2002 containing 12 (twelve) grounds of appeal. See pages 244-251 of the record.
In compliance with the rules of this court parties exchanged briefs of argument. Appellants further Amended Brief of Argument was filed on 20/4/09 but deemed properly filed on 19/10/09. While respondents Amended Brief of Argument filed on 19/5/09 but deemed properly filed on l9/10/09. When the appeal came up for hearing, both counsel adopted their respective briefs of argument. Appellants’ counsel urged the court to discountenance issue 5 as it forms the fulcrum of the interlocutory appeal No CA/I/101A/2005.
Appellant initially formulated five issues for determination from the 12 grounds of appeal filed. After abandoning issue 5, appellants now have four issues. They are:-
(i) Whether or not the respondent proved their root of title Grounds 1, 2, 3 and 5.
(ii) Whether or not the learned trial judge did not abdicate his role as an impartial judge by making a case for the respondent – Grounds 4 and 7.
(iii) Did the learned trial judge adopt the proper approach in the consideration of the case of the parties – Grounds 6 and 8.
(iv) Whether or not the learned trial judge properly considered Exhibit E – Grounds 9 and 10.
Respondents also distilled three issues for determination but issues three was abandoned at the hearing of the appeal. The remaining two issues are as follows:-
(i) Whether the learned trial judge was right in holding that the respondents established by satisfactory, cogent and credible evidence the pleaded root of title that it was the respondents great ancestor one Akinbiyi Arijo, that settled on the land in dispute which is part of Arijo’s family compound. Grounds 1, 2, 8.
(ii) Whether the approach of the learned trial judge in the consideration of the entire case was wrong. Grounds 3, 4, 5, 6, 7, 9, 10.
I have examined the issues formulated by parties. The issues formulated by the appellants are apt as such I will be guided by same in determining this appeal.
ISSUE NO 1
This issue deals with the question as to whether respondents proved their root of title. It is submitted for the appellant that the respondents claims before the lower court includes declaration that they are entitled to land and developments therein, situate, lying and being at NW1/68A, Agbeni, Ibadan. In support of the claim, the respondents pleaded that their ancestor Akinbiyi Arijo first settled on the land called Agbeni, Ibadan. It is submitted that PW1 in his evidence at page 63 of the record stated that his ancestor settled on part of the land in dispute while Agbeni settled on his own part of the land in dispute but admitted under cross examination that there are other compounds surrounding their compounds. Reference was also made to the testimony of PW2 Lamidi Akinbiyi Arijo appearing at page 71 of the record wherein he said that Lakanle was the person who first settled on the land in dispute and it was Lakanle who put Agbeni there. That PW4 Mojisola Salawu member of Akinbiyi Arijo family stated in her evidence (page 74) of the record) that the land in dispute is in Agbeni area and Agbeni settled on Lakanle’s farm land. Witness also stated that the land in dispute is in Agbeni area but Agbeni did not grant land to Akinbiyi Arijo.
It is further submitted that from the admission by the respondents’ witnesses their claim that their ancestor was the first to settle on the land in dispute collapsed as pack of cards. If Lakanle was the first to settle on the land in dispute how could the respondents’ ancestors be the first to settle on the land. That, both parties agreed that the whole area is Agbeni area. That it was wrong for the learned trial judge to hold that Akinbiyi Arijo settled on another portion of the land. It is submitted that appellants on the other hand pleaded that the land in dispute was first settled there by Taiwo Agbeni. That Taiwo Agbeni granted the area in dispute to the appellants, great grandfather in the presence of the respondents’ great grandfather. That appellants pleaded and testified that the said Taiwo Agbeni granted land to Arijo Akinbiyi and others. See page 97 of the record. Appellants also testified that the land in dispute is different from Idowu Akinbiyi’s house. It is between Imam’s compound and Idowu Akinbiyi’s compound. Reference was made to case of Idandan v. Okumagba (1975) 9-12 SC 227 wherein the Supreme Court laid down five ways of proving title to land in dispute.
It is further submitted that the evidence of traditional title which the lower court relied upon was without basis. That respondents relied on settlement yet under cross-examination admitted that someone also was the first settler on the land in dispute. It is also submitted that based on the evidence adduced respondents failed to satisfy the principles stated in Igbojimadu v. Ibeabuchi (1998) 1 NWLR (pt.533) 179 at 190-191; Akinloye v. Eyiyola Total Nig. Ltd v. Nwankwo (1977) 5 SC 1 at 10.
That respondents did not tell the court how and when their ancestor settled on the land in dispute. That they did not inform the court why the place was called Agbeni and who Agbeni was. That the learned trial judge ought not to have relied on their evidence as same was worthless. That on the contrary appellants pleaded grant as root of their title. They pleaded that the land was granted to their ancestor Agbeni. They mentioned witnesses to such grant which include Fatokun a member of the family of the respondents. See Omidiran v. Owolabi (1994) 6 NWLR (Pt.350) 373.
It is also submitted that where there are conflicts or contradictions in the evidence of tradition led by a party demeanour is no acceptable guide in such situation but normal judicial function of the court must be brought to bear in assessing the worth of that evidence. See Igbojimadu v. Ibeabuchi (supra). It is settled that in claim for declaration of title, the onus is on the plaintiff to establish his case and he must succeed on the strength of his case and not on the weakness of the defence. See Omiwgbufor vs. Okoye (1995) 1 NWLR (pt. 424) 252 at 304.
It is further submitted that submitted that the learned trial Judge erred in attaching weight to the views expressed in exhibit C and C1 to support their traditional evidence. That no evidence was adduced to show that the book is generally acknowledged as a standard work or as appropriate authorities on the relevant traditional history to enable the court to resort with justification to it. Reliance was placed on Idundun vs. Okamagba (supra) 227 at 247. That without exhibit C and C1, the traditional evidence of the respondents cannot be believed as a result of contradictions and inconsistencies. That with the aid of exhibits C and C1 the evidence is still worthless and of no value. Counsel urged the court to resolve this issue in favour of the appellants.
The response of the respondents is as argued under issue 1 paragraphs 4.01- 4.06 of the brief of argument. It is submitted that the learned trial Judge commenced the consideration of this issue from pages 222 – 227 of the record. That the trial Judge started by looking at the pleadings of parties to see area of agreement between the parties e.g. the identity of the land in dispute which by evidence of the parties is said to be within Akinbiyi Arijo family compound. See pages 224 lines 1 page 225 lines 1 -10 of the record. It is submitted that the traditional evidence of the Respondents, which was by settlement was compared with that of the Appellants, which was by grant from Alagbeni. That the traditional evidence of the Respondents was preferred and accepted, while that of the Appellants was rejected. See pages 222 line 23 to 227 fines 1 -27 of the record.
It is further submitted that going through these pages it is not correct to say that the learned trial Judge did not consider the evidence of defence as alleged in their brief. It is submitted that a learned trial Judge was and is entitled to rely on traditional evidence of a plaintiff or a defendant counter- claimant alone without consideration of evidence of acts of possession or ownership in recent years. See pages 229 – 230 of the record. See also Balogun v. Akanji (1988) 2 SC 199 and Abinabina vs. Enyimadu 12 WACA 171 at 174.
It is also submitted that the consideration of acts of ownership or possession which the Appellants were canvassing in this appeal, as one of the ways to prove title, becomes irrelevant, since they have pleaded grant as their root of title and failed to establish it, See pages 228 lines 11 -239 of the record and case of Fasoro v. Beyioku (1988) 4 SCNJ 23 at 29.
That the learned trial Judge even went ahead to consider and resolve these acts relied upon by the appellants and rejected them, preferring the evidence of the Respondents which is cogent and more probable. Counsel urged the court to resolve this issue in favour of respondents.
It is well established that a plaintiff seeking for declaration of title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing of such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case.
It had, equally, been stated in a plethora of cases that for a plaintiff to succeed in such a case, he could prove his ownership of the said land or title therein through any of the five different ways long entrenched by the Supreme Court for proving the same, that is to say:-
(1) By traditional evidence
(2) By production of documents of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more Years old produced from proper custody.
(3) By positive acts of ownership such as (selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough to warrant the inference that the person is the true owner;
(4) By acts of long possession and enjoyment of land,
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute.
See Idundun v. Okumagba (1976) 9 – 10 SC 227, Alli v. Alesinloye (2000) FWLR (pt.15) 2610 at 2632 paragraphs 3- D and Queen v. Uche (1994) 6 NWLR (pt.350) 529 at 550 paras G-H.
From the totality of the pleadings of both parties there is no doubt that both parties predicated their claim to title in respect of the land in dispute on traditional history. While plaintiffs pleaded first settlement, the defendants pleaded a grant by a first settler.
It is trite that traditional history is one of the recognised ways of proving title to land as laid down in classicus case of Idundun v. Okumagba (supra) 227. It is also settled law that a plaintiff whose claim for title to land as in this case is founded on traditional history must plead and prove the following facts by credible, cogent and reliable evidence:-
(1) who founded the land
(2) how he founded the land and
(3) the particulars of the intervening owners through whom he claims.
See Dike v. Okoloebo (1999) 19 NWLR Pt. 623) 359 at 363, Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745 at 782 – 783 and Igbojimadu v. Ibeabuchi (1998) 1 NWLR (pt.533) 179 at 190 – 191 paras H-B.
It is very clear from the pleadings and evidence adduced by the Respondents that Akinbiyi Arijo was an Ifa Priest and he settled at the place now known as Arijo compound on his own. The land in dispute was not granted to him by Agbeni, PW1 and PW3 in particular traced their genealogy from Akinbiyi Arijo to Idowu to Oyalade Abegunrin to Akano the father of the present plaintiffs. They also testified as to how the defendants grandfather, Ojebode was brought to Arijo’s compound when he was six months old, Ojebode was brought to Idowu’s house to enable Oshunfunke, Idowu’s wife take care of him after his father’s death. According to PW1’s evidence Oyalade Osunfunke’s child for Idowu later married Ojebode’s mother. The appellants on the other hand averred and gave evidence in line with respondents’ evidence that Ojebode was brought to Arijo’s compound by Osunfunke though they said he was two years old then. According to the Appellants their grandfather was granted land infront of Akinbiyi Arijo’s compound to build a house which is the land in dispute. That Akinbiyi Arijo’s family had built their house and Agbeni said Ojebode should be granted land out of the remaining land infront of their houses. The land in dispute was granted to Ojebode in the presence of Oyalade and Fatokun. They also stated in evidence that Agbeni granted land to Imam, Olota and others. A trial Judge faced with competing histories regarding the acquisition of a piece of land, through traditional history, has to determine the truth of the histories on the bases of probability that either of them could be true.
In Ireju Nwokidu & 3 Ors v. Mark Okami (2010) 1 SCNJ 167 at page 196 (2010) 3 NWLR (Pt.1181) 362 at 398 paras A- C, Supreme Court gave guide thus:-
“In the scenario before the court, where the case is fought on evidence of traditional history – which in
other words becomes a matter of hearsay upon hearsay which is the nature of traditional evidence, the trial court in its traditional role of an umpire has a duty to examine the evidence of the parties and come to the conclusion which is more probable in the circumstances of the case, by testing it against the other evidence. Where witnesses of one party contradict each other on the traditional history relied upon, the trial court will be right to reject the traditional history. If the evidence adduced on one side is supportive of the traditional history relied upon by the other side, the trial court will be right in accepting the traditional history. It is only when it can neither find any of the two histories probable nor conclusive that he will declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.”
PW1 and pW3 were emphatic in their testimony that their great grandfather settled on the land in dispute and not that he was granted the land by Agbeni whom the appellants claimed was the first settler. As rightly observed by the learned trial Judge their evidence remained unshaken under cross-examination. DW3 stated under cross examination that Adio compound, his father’s compound is in Agbeni area and near the land in dispute but it was not granted by Agbeni. It was one Ibe Oluyole that granted his father the land. It is also in evidence that the land in dispute is located within Akinbiyi Arijo compound as pleaded in paragraph 3 of the respondents’ statement of claim. Appellants admitted the averment in paragraph 2 of their 2nd further amended statement of defence and counter-claim. The learned trial Judge found as a fact after examining the two survey plans exhibit ‘B’ and F tendered by parties that the land in dispute is within Akinbiyi Arijo’s compound. DW5 confirmed the evidence of the plaintiffs/respondents’ witnesses that the house and the land in dispute are within Akinbiyi Arijo’s compound. The learned trial Judge found at page 225 of the record lines 18-26 as follows:-
“…the only inference I can draw from that evidence is that the contention that Agbeni was the first to settle in the whole area or that he was the one who granted land to all other people who have their compounds in the area called Agbeni is not true, then it means the traditional evidence of the plaintiffs that their ancestor settled on his own is probable. From the totality of the evidence before me, I am unable to say the same thing about the defendants evidence…”
It is clearly established that Akinbiyi Arijo’s compound was already in existence and in fact well established before the appellants grandfather was brought there, Contrary to the submission of appellants’ counsel there are no material contradictions in the evidence of tradition led by the respondents. Respondents’ witnesses maintained in their evidence that their great ancestor first settled at Agbeni Ibadan at Akinbiyi Arijo family compound as pleaded in paragraph 4 of the statement of claim. It was not their case that their great ancestor was the first settler in the area known as Agbeni.
As regards exhibits ‘C and ‘C1′, I agree with the submission of appellants’ counsel that no weight could be attached as the trend of authorities are to the effect that books and manuscripts on customary law cannot be referred to by a Judge suomotu as if they are legal authorities. The author of exhibit ‘C’ the book titled Akinyele’s outline History of Ibadan (part one) ought to have, been called as an expert witness. In Idundun v. Okumagba (1975) 9 -10 SC 227 the Supreme Court said at page 247:-
“No evidence was adduced to show that any of these books is generally acknowledged either in Nigeria or elsewhere as a standard work or as appropriate authority on the relevant traditional history as to enable the court to resort, with justification, to its aid… Moreover, none of the authors of these books testified in support of the views stated therein and no explanation was given for this omission. For all these reason, we share the apprehensions of the learned trial Judge about the value or weight of the traditional history as narrated by each of these authorities, particularly as the authenticity and impartiality of the sources of their narratives cannot, for obvious reasons, be easily ascertained.”
See also Onwuchekwa v. Onwuchekwa (1991) 5 NWLR (pt.194) 740.
In the instant case it is worthy of note that the learned trial Judge found exhibit C and C1 to be a surplusage, with without the said exhibits his finding remains the same. The learned trial Judge at page 228 of the record said:-
” The fact that the evidence of traditional history led by the defendants has been rejected leaves exhibits C and C1 as an unchallenged evidence which the court is at liberty to take into consideration, particularly when the defendants did not cite any book or authority saying the contrary, I found exhibits .C and C1 to be a surplusage, with or without it my finding remains the same.”
(Underlining mine for emphasis)
The learned trial Judge observed that even without the support of exhibit C and C1 the traditional evidence of the respondents is accepted as probable. It is my considered view that the finding of the learned trial Judge on traditional history as presented by the respondents cannot be faulted. I would accordingly resolve issue 1 in favour of the respondents.
ISSUE 2
The grouse of the appellants under this issue is that the learned trial Judge made a case for the respondents. That the respondents’ case is that of settlement and not grant as such there is no basis for the learned trial Judge to find for the respondents on grant when they pleaded and gave evidence on settlement. Reliance was placed on Kode v. Yusuf (2001) 4 NWLR (pt.703) 312 at 492. That it is not open for the Judge who is supposed to be an impartial arbiter to make a case for parties or to grant a claim that is not asked for by any of the parties. Reliance was placed on Ali v. Alesinloye (2000) 6 NWLR (pt.660) 177 at 212 paras b, and Umar v. Bayero University Kano (1988) 4 NWLR (pt.86) 85 at 93 and Kuti v. Batogun (1978) 11 LRN 333 and 357. That by relying on the comment referred to on page 225 of the record the learned trial judge misdirected himself and the misdirection has occasioned miscarriage of justice. Counsel urged the court to resolve the issue in favour of the appellants.
Respondents’ counsel submitted in reply denying the fact that the learned trial Judge gave judgment in favour of the Respondents on grant when they pleaded settlement. Reference was made to the findings of the learned trial Judge from page 224 lines 32 to page 225 lines 1-26 of the record particularly page 225 lines 18 to 26. It is submitted that bearing in mind, the next statement made by the trial Judge at page 226 lines 16 to page 227 lines 1-27, the last five lines it cannot be said that the learned trial Judge made a case for the respondents or any party as alleged by the appellants, That it was the appellants that introduced settlement by Alagbeni and grant from him into the case under cross examination and the respondents never gave any evidence that Alagbeni granted land to them or to anybody. That it was the appellants that introduced grant from Alagbeni to the case which case the learned trial judge rejected as not being probable. See Balogun v. Akanji (1988) 2SC 199 at 238-240.
The relevant portion of the statement of the learned trial Judge appearing at page 225 of the record lines 26-31 and page 226 lines 1-3 are reproduced for emphasis as follows:-
“…even if Agbeni was the one who granted land to Akinbiyi Arijo, having established their compound and having built their houses on the land purportedly granted to Arijo, it is unbelieving that Agbeni would come to that same compound again to grant part of the same land which the plaintiffs have established their compound in which members of their family up to their third generation were hung at that time to another person, moreso when there is nothing to show that the purported grant by Agbeni to Arijo was not an absolute grant.”
The above passage cannot be read in isolation. The entire Judgment must be considered in order to ascertain whether the trial Judge made any case for one party in this case the respondents. The statement made by the learned trial Judge immediately after the above quoted passage is also relevant, The learned trial Judge at page226 lines 16 to page 227 lines 1-27 particularly the last 5 lines had this to say:-
“Having considered the entire evidence of traditional history led by both sides. I find the evidence of the Plaintiffs to be cogent and credible. I cannot say the same thing of the Defendants evidence. I therefore accept the traditional evidence of the plaintiffs and reject that of the Defendants.”
I agree with the respondents’ counsel that it was the appellants that introduced grant from Agbeni to the case which case the learned trial Judge rejected as not being probable. It is clear from the record that the learned trial Judge did not give judgment to the respondents based on the alternative statement referred to by the appellants. It is also not true that the learned trial Judge gave Judgment in favour of the respondents on grant when they pleaded settlement. The findings of the learned trial Judge at page 225 lines 18 to 26 of the record is very clear on this issue. He had this to say:-
“The only inference I can draw from that evidence is that the contention that Agbeni was the first to settle in the whole area or that he was the one who granted land to all other people who have their compounds in the area called Agbeni is not true, then it means the traditional evidence of the plaintiffs that their ancestor settled on his own is probable from the totality of the evidence before me, I am unable to say the same thing about the Defendants’ evidence.”
Respondents pleaded and led evidence on first settlement and not grant. I find the arguments of appellants’ counsel on this issue not tenable.
Issue 2 is accordingly resolved in favour of the respondents.
ISSUE 3
The issue is whether the learned trial judge adopted the proper approach in the consideration of the case of the parties.
The complaint of the appellants relates to page 224 of the record that the learned trial judge while making his findings on the two plans tendered by parties considered the evidence of the Defendants/Appellants before considering that of the plaintiffs/respondents. It is submitted that the approach is incurable defective. Reliance was placed on Owoade v. Omitola (1988) 2 NWLR (pt.77) 413 at 401; Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101 at 113.
It is further submitted that the learned trial judge reached his conclusion for the respondents without giving adequate consideration for the case of the appellants. That out of the six witnesses that testified for the defence, the learned trial judge only relied on evidence of DW3. See page 225 of the record. That, the failure of the learned trial judge to consider the evidence of the other witnesses denied them the opportunity of having their witnesses put on the imaginary scale. See Mogaji & Ors v. Odofin & Ors (1978) 4 S.C. 91 at 92, per Fatayi Williams, JSC (as he then was) wherein he said:
“In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight.”
It is submitted that the learned trial judge wrongly put the onus on the Appellants even though they are defendants. The law is clear that it is the respondents who claim a declaration of title who should prove exclusive possession. The respondents failed to do so and appellants who are the defendants were able to show that they were in lawful possession of the land. Reliance was placed on Owoade vs. Omitola (supra). That from the evidence adduced appellants established that they have been exercising acts showing that they were in possession. It is submitted that the learned trial judge ought to have dismissed the case of the respondents as soon as he discovered the appellants have long been in Possession. Counsel urged the court to resolve the issue in favour of the appellants.
In reply respondents submitted in paragraph 5.08 of their brief, reading through pages 224 lines 21-27 of the record it will be clearly seen that the learned trial judge carefully considered the evidence of each of the defence witnesses on the grant by Agbeni of the land in dispute and gave reasons for rejecting them. That it is not correct as alleged by the appellants in their brief, that the learned trial judge did not consider their evidence at all, That the evidence of the witnesses were rejected and appellants have not appealed against the rejection. It is submitted that when evidence of a witness is rejected by the trial court and the trial court’s decision thereon, has not been challenged on appeal the findings should be affirmed. Reliance was placed on Akpasubi v. Umweni (1982) 11 SC 132 at 138.
The complaint of the appellants that the learned trial judge demolished the appellants’ case before considering the defence is unfounded. I have carefully perused the entire record. It is my humble view that the approach adopted is in line with the guideline stated by the apex court in Okalade v. Awosanya (2000) 1 SC 107 at 117 Per Uwaifo JSC. At page 224 of the record all that the learned trial judge did was to ascertain the identity of the land and house in dispute. The learned trial judge compared the two plans tendered by both parties and also referred to evidence adduced by appellants’ witnesses and found as a fact that the land in dispute is within Akinbiyi Arijo Compound.
The next complaint to be considered is whether the learned trial judge failed to give proper adequate consideration to the case for the defence while considering the case for the plaintiffs/respondents. That in the review and while making findings the learned trial judge relied solely on the evidence of DW3 who he christened the star witness. In a civil case, the proper approach to evidence called by both sides is to ask the question on which side does the weight of evidence lie? This is because proof in civil cases is on balance of probabilities. In the assessment of evidence on any particular issue evidence called by each party ought to be put on either side of the imaginary scale and weighed together. Whichever outweigh the other in terms of probative value should be accepted. In Mogaji vs. Odofin (1978) 4 SC 91 at 93 the apex court stated:
“In other words the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it, if the law supports it, bearing in mind the cause of action, he will then find for the plaintiff. If not the plaintiff’s case will be dismissed.”
In the instant case the learned trial judge reviewed the evidence of the witnesses on both sides and ascribed probative value to their evidence. At the end of his assessment and after weighing the two sides on an imaginary scale accepted the traditional history of the respondents as more probable. From the totality of the evidence adduced I do not share the view expressed by appellants’ counsel that the learned trial judge relied only on the evidence of DW3.
On the issue of acts of long possession the learned trial judge also meticulously considered the evidence adduced by both parties. In resolving the issue the learned trial judge reviewed the evidence of relevant witnesses, evaluated same and came to the conclusion that respondents are entitled to judgment. At page 239 of the record the learned trial judge had this to say:
“I have put the evidence of both parties on the imaginary scale of justice, it is my finding that the evidence of the plaintiffs weighs more than the preponderance of evidence before me. I hereby find that the plaintiffs are entitled to the declarations being sought by them.”
There is nowhere in the judgment to show that the learned trial judge placed burden of proof on the appellants. The parties agreed on the identity of the land in dispute being within Akinbiyi Arijo compound by their pleadings particularly paragraph 3 of the statement of claim and paragraph 2 of the further amended statement of defence and Exhibit B and F tendered. The dispute was the same house built by Idowu Akinbiyi into which Ojebode and his mother, Elekunde came to live in when Ojebode was six months old after death of his father Ologunde.
Appellants denied that it was not the same house but failed to identify the house they were brought to live in belonging to Idowu Akinbiyi within Akinbiyi Arijo family compound. Appellants had a duty to identify that house but failed to do so and the court accepted the case of the respondents. It is trite that he who asserts has the burden to prove the assertion. It is to be noted also that the burden of proof in civil cases is not static.
As earlier stated the learned trial judge based on the totality of the evidence adduced by both parties accepted the traditional history of the respondents as more probable. The finding in my view is reasonable having regard to the totality of the evidence adduced before the lower court. The respondents predicated their root of title on settlement and they successfully proved it. Whereas the appellants relied on and pleaded a grant as their root of title but failed to prove same to the satisfaction of the court. Had it been that they successfully proved such grant other evidence of acts of possession after the grant will merely go to strengthen the grant. See the case of Queen v. Uche (1994) 6 NWLR (pt.350) 329 at 350. In Balogun vs. Akanji (1988) 1 NWLR (pt. 70) 301 at 314 the apex court observed as follows:
“By the acceptance of their traditional evidence, it was enough eo-ipso for their claim for declaration of title to be granted – see Idundun vs. Okumagba (1976) 1 NMLR 200 at 210; (1976) 10 5C 227 at p. 246. It was not therefore necessary for the trial judge to look for evidence of exclusive possession of the land in dispute before the declaration sought by the plaintiffs could be granted.”
The acts of possession touch on the credibility of witnesses and the learned trial Judge who had the advantage of seeing; hearing and watching the demeanour of the witnesses testify in the witness box, assessed the evidence and ascribed probative to same by rejecting the evidence adduced by appellants’ witnesses. This court did not enjoy the advantage of watching the demeanour of the witness as such I cannot interfere with the finding of the trial Judge. See Queen vs. Uche (Supra) 357 paras G-H.
From all that I have said above my simple answer to the question raised in issue 1 is yes, Accordingly, the said issue is resolved against the appellant.
ISSUE 4
The complaint of the appellants under the issue is whether the learned trial Judge properly considered Exhibit ‘E’. The contention of the appellants is that in Exhibit E the certified true copy of the Judgment in suit No,68.50 between Busari Ojesola v. Fadairo Akanbi delivered on 1st December, 1952 the house in dispute was declared by customary court Judge as Ojebode family house. It is contended that respondents’ father was aware of the case but he did not lay claim to the house while the action was fought in court in 1952. It is submitted that the learned trial Judge did not make any findings on the failure of the respondents to counter-claim or to appeal against the Judgment. That the findings of the learned trial Judge is perverse. It is further submitted that the doctrine of estoppel by standing by applies to the case at hand. Reliance was placed on the Bello vs. Fayose (1999) 11 NWLR (pt. 627) 510 at 519 and Marbell vs. Akwei 14 WACA 143, 145. That respondents cannot be heard now to say that the house in dispute was no longer Ojebode family property. Counsel urged the court to resolve the issue in favour of the Appellants.
In response, counsel to the respondents submitted that the fact that appellants were unable to establish grant from Agbeni which they pleaded and relied upon, acts of possession and ownership based an Exhibit ‘E’ and other evidence cannot avail them. That the learned trial Judge properly considered the evidence led in support of their claim for acts of possession and ownership and rejected the evidence. Counsel referred to page 236 lines 14 to page 239 lines 1-32 of the record. Learned counsel submitted that when evidence of a witness is rejected by the trial court and the trial court’s decision thereon, has not been challenged on appeal, the findings should be affirmed. See Akpasubi v. Umweni (1982) 11 SC 132 at 138. Counsel urged the court to uphold the rejection of the entire evidence.
Exhibit E is the judgment of the customary court delivered on 19-1-51, by the president lands court, Ekarun Olubadan. The decision of the court was to the effect that the house in dispute being a family property should be divided among the family. It is clear from the proceedings that respondents’ father Akano was not made a party to that suit. For estoppel per rem judicatem to apply it is settled that parties, subject matter and issues in the previous suit have to be the same. See Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523 at 536 and Idowu Alase and Ors vs. Otori Ilu and Ors (1965) NMLR 66. From the pleadings and evidence adduced there is nothing to show that respondents father wilfully remained passive when the parties in exhibit ‘E’ had the matter in court.
Having regard to the circumstances of the case the doctrine of estoppel by way of standing-by is inapplicable. See Gbadamosi vs. Bello (1985) 1 NWLR (Pt. 2) 211.
Apart from the observations noted above, it was earlier stated in this judgment that the learned trial judge did not accept the traditional History of the appellants as probable and same was rejected. In other words, appellants failed to prove their root of title as claimed. Their claim for acts of long possession was also rejected. The evidence led in support of the acts of long possession by appellants’ witnesses were discredited by the trial judge. Having regard to the totality of the evidence adduced, it is also my considered view that Exhibit ‘E’ cannot avail the appellants. Accordingly, issue 4 is resolved against the appellants.
In the final analysis, I hold that this appeal is devoid of merit. It is hereby dismissed. The judgment of the High court of Justice Ibadan delivered by Bolaji – Yusuff, J. on 18-12-2001 is hereby affirmed. There shall be N30,000,00 costs assessed in favour of the respondents.
MODUPE FASANMI, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother Mshelia J.C.A. just delivered.
I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
I therefore dismiss the appeal and abide by the consequential orders made in the said lead judgment including the order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Mshelia, J.C.A., availed me the opportunity of reading before now the thorough judgment prepared and delivered today by his lordship.
I agree with the judgment and adopt it as mine.
Appearances
I.L. AlabiFor Appellant
AND
J.O.A. AjakaiyeFor Respondent
