MR JAMES OLOWOYO v. JOSEPH ABIODUN OJO & ORS.
(2011)LCN/4728(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of July, 2011
CA/AE/76/2010
RATIO
PROLIFERATION OF ISSUES: ATTITUDE OF THE COURT TO PROLIFERATION OF ISSUES FOR DETERMINATION
The Apex court and this court have in many cases frowned at proliferation of issues in brief writing by formulating more issues than are necessary to resolve the real issues at stake, it is undesirable. The Apex court in the case of HIGH-GRADE MARITIME SERVICE LTD V. FIRST BANK OF NIG. LTD (1991) 1 NWLR (PART 167) 290 at page 311 observed as follows: “This court has constantly counsel led and warned counsel to refrain from prolixity in the formulation of issues for determination. The principle has always been and still is that an issue should be formulated as encompassing a number of grounds of appeal.” In the same way in the case of CLAY IND. (NIG) LTD V. AINA (1997) 8 NWLR (PART 516) 208 at 233 the same court held that: “It cannot be overemphasized that the object of the formulation of issues for determination in an appeal is to enable the narrow and accuracy (sic), thus enabling the court to consider together a number of associated and related grounds of appeal within the issue to which they are related in the determination of the appeal. See RAPHAEL AGU V. CHRISTIAN IKEWIBE (1991) 3 NWLR (PART 180) 385 at 401. Issues must not only be related to the grounds of appeal filed, it is improper to formulate unnecessarily lengthy and repetitive issues. An unnecessary proliferation of issues is totally undesirable and has times without number been frowned at and discouraged by this Court. See OGBUANYINYA v. OBI IKUDO (NO.2) (1990) 4 NWLR (PART 146) 551 at 567 and ARIL V. UZORKA (1993) 8 NWLR (PART 309) 1 A 17…………………………………………. An issue to be determined can take care of, and related to a number of grounds of appeal.” It is the practice and tradition of this court that issues for determination must be fewer than the grounds of appeal. An issue would in most cases, cover more than one ground. In other words, one issue can oversee more than one ground of appeal, and thus makes an issue a collection of grounds of appeal. Of course there are instances where an issue is formulated from a single ground of appeal. Such instances do arise and could be regarded as the exception to the accepted tradition. PER CHIDI NWAOMA UWA, J.C.A.
PLEADINGS: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
The law is that parties are bound by their pleadings, see, IFETA v. SPDC (NIG( (2006) 31 WRN 1; (2006) 8 NWLR (PART 983) 585 and OTANMA V. YOUDUBAGHA (2006) 10 WRN 1; (2006) 2 NWLR (PART 964) 377 and the recent decision of this court in REG. RCCG VS. BANKOLE (2011)14 WRN 138 in which I was privileged to have delivered the leading judgment. PER CHIDI NWAOMA UWA, J.C.A.
BURDEN OF PROOF: WHETHER A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS CASE IN A CLAIM FOR A DECLARATION OF TITLE
A plaintiff must succeed on the strength of his case having claimed for a declaration that would confirm title to him if he succeeds, he must prove it. He who asserts must prove, see, Sections 136 and 137(1) of the Evidence Act, also the cases of IBRAHIM V. OJAINO (2004) 11 WRN 1; (2004) ALL FWLR (PART 199) 1285; (2004) 4 NWLR (PART 862) 89, OKOCHUKWU V.NDAH (1967) NWLR 368, NBN LTD VS. OPEOLA (1994) 1 NWLR (PART 319) 126, CHUKWUJEKWU V. OLALERE (1992) 2 NWLR (PART 221) 86 and F.M.F. LTD V. EKPO (2004) 2 NWLR (PART 856) 100. If evidence is not adduced in support of the assertion/facts he who seeks to rely on same would fail. PER CHIDI NWAOMA UWA, J.C.A.
ESTOPPEL: CONDITIONS FOR A SUCCESSFUL PLEA OF ESTOPPEL
It is trite now that estoppel can only be used as a shield, not a sword of attack. In this present case the appellant who has raised the issue of estoppel is an appellant who was plaintiff before the trial court. For the plea to succeed the party relying on it must show that: 1. The parties/privies were the same, 2. The issues involved and or the subject-matter of the suit must be the same, 3. The case sought to be relied upon in the subsequent suit was adjudicated upon by a court of competent jurisdiction. (in this case customary arbitration) see, the cases of IYAYI V. EJIEBE (1987) 3 NWLR (PART 61) 523, EZENWA V. KAREEM (1990) 21 N.S.C.C. (PART 11) 284 at 290; (1990) 3 NWLR (PART 138) 258 at 268. PER CHIDI NWAOMA UWA, J.C.A.
ESTOPPEL: ESSENCE OF A PLEA ESTOPPEL
The essence of an estoppel whether res judicata or issue estoppel as claimed in this case, are one and the same stock or specie by the courts it is to discourage prolongation of disputes or proliferation of litigation once a matter or issue is settled once and for all by a court of competent jurisdiction, in this case a palace custom any arbitration. In MUSARI V. OGUNFODUNRIN (1996) 9 NWLR (PART 470) 1, this court held concerning the object of estoppel thus: “A party whether successful or otherwise in such a case already decided should not be allowed to have a second bite of the “legal cake”. See, CHIEF G. A. TITILOYE & 4 ORS V. CHIEF J. OMONIYI OLUPO & 4 ORS (1991) 7 NWLR (PART 205) 519 at 544; ADEDAYO V. BABATOLA (1995) 7 NWLR (PART 408) 383 at 409 – 410; FADIORA VS GBADEBO & ANOR (1978) 3 S. C. 291 and IYOWUAMI V. IYOWUAWI V. IYOWUAWI (1987) 4 NWLR (PART 63) 61. PER CHIDI NWAOMA UWA, J.C.A.
WRONGLY ADMITTED EVIDENCE: WHETHER A WRONGLY ADMITTED EVIDENCE WOULD BE EXPUNGED FROM THE RECORDS WHEN THE JUDGMENT IS BEING CONSIDERED.
The law is that where evidence has been wrongly admitted, the evidence would be expunged or discountenanced from the records when the judgment is being considered. The basis is that the evidence does not go to any issue, the resultant effect being that it cannot be legal evidence upon which a court can properly make a finding of fact. See, AGBAJE V. ADIGUN & ORS (1993) 1 NWLR (PART 269) 261; NATIOAL INVESTMENT & PROPERTIES CO. LTD V. THOMPSON ORGANISATION LTD (1969) ALL NLR 138; OKONJI V. NJOKANMA (1991) 7 NWLR (PART 202) 131; HASSAN V. MAIDUGURI MANAGEMENT COMMITTEE (1991) 8 NWLR (PART 212) 738) and NAMSON V. STATE (1993) 5 NWLR (PART 292) 129 at 144. PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
MR JAMES OLOWOYO Appellant(s)
AND
1. JOSEPH ABIODUN OJO
2. AUGUSTINE AFOLARIN ATA
3. FELIX KEHINDE
4. SAMUEL OLU OWOYEMI
5. ADEBAYO ONILEAJA
6. ISAAC BABALOLA
7. ASAMO ADEREMI
8. KEHINDE OGUNRINDE
9. AYO AYENI ABULEFON
10. MARY OMOBOLA ODUNSI
11. TAIWO OLOWOYEYE
12. SUNDAY AFOLAYAN ADELUYI
13. OMOTAYO AROMI ENIOLA
14. YUSUF ATOYE GANIYU
15. FEMI OGUNRINDE Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of M. A. Agbelusi, J of the Ekiti State High Court, Ikere judicial division, delivered on the 21st day of January, 2008.
The Appellant as plaintiff before the trial court claimed against the respondents as defendants the following declaratory and injunctive reliefs:
(a) “A declaration that the purported sale or alienation of plaintiff’s family land by the first to fifth defendants to the sixth to fifteenth defendants is illegal, unlawful ultravires, irregular, null and void and of no effect whatsoever same having been done or carried out without the consent authority consensus and concurrence of plaintiff.
(b) An order on the first to fifth defendant to render all accounts of the various plot of land sold to the sixth to fifteenth defendants and others.
(c) An order on the first to the fifth defendants to make available for inspection the survey plan, sales receipts layout plan and all the receipt of the Oshinio family land lying being and situate at the back of Bababoni Off Igbara – Odo Road Ikere Ekiti.
(d) The sum of N2,000,000.00 (Two Million Naira only) being general damages for trespass committed and still being committed on plaintiff’s land at the back of Bababoni off Igbara – Odo Road Ikere – Ekiti by the sixth to the fifteenth defendants.
(e) A perpetual or permanent injunction restraining the sixth to fifteenth defendant, their agents, servant, assigns and privies from committing any act(s) or further act(s) of trespass on the said land forthwith.
(f) A perpetual or permanent injunction restraining the first to fifth defendants their agents, servant, assigns and privies from further selling, granting, giving or alienating plaintiff’s land without his authority or consent forthwith and henceforth.”
The background facts on the part of the appellant is that he is the head of Oshinio famiy of Atiba Street, Ikere Ekiti and as such had the right over the Oshinio family property particularly the family land situate, lying and being behind Bababoni off Igbara – Odo Road, Ikere Ekiti. The appellant contended that the 1st – 5th respondents had no right to sell parts of the aforesaid family land to any person particularly the 6th – 15th respondents without his consent. The Appellant prayed the lower court to declare the proposed sale of parts of the family land to the 6th – 15th respondents void. He also prayed the court to order the 1st – 5th Respondents to render account of the proceeds and sale of the family land to the 6th – 15th respondents. The appellant and his son gave evidence before the trial court.
On the part of the respondents, they contended that even though the appellant and his son testified before the trial court, no principal member of the Oshinio family was called by the appellant to testify in his favour. The 1st – 5th respondents admitted that they sold the said plots of the Oshinio family land to the 6th – 15th respondents in their capacities as the Head, Secretary and principal members of Oshinio family of Ikere Ekiti. The respondents maintained that the appellant was not a member of their family talk less their head, he being a stranger. The respondents testified to the effect that they used the proceeds realized from the sale of their family land to construct their family hall. At the end of the trial, the trial court dismissed the appellant’s claims. The appellant was dissatisfied with the judgment and appealed against same, vide his Notice of Appeal dated 18th April, 2008, filed the same day, containing eight (8) grounds of Appeal, from which the appellant formulated eight (8) issues for determination by this court. They are:
(A) “whether it was proper and legally justified to dismiss the first leg of appellant’s claim and whether that should be a basis for dismissing legs or reliefs 2, 3, 4, 5 and 6 of appellant’s claim without more. Ground 1.
(B) Whether the lower court can declare 1st – 5th respondents as head and principal members of Oshinio family when there was no Counter -Claim. Ground 2.
(C) Whether the non-appraisal, consideration, appreciation, scrutinization, interpretation and examination of Exhibits ‘A’, ‘C’ and ‘C1’ respectively has not adversely affected the judgment of the lower court. Ground 3.
(D) whether an appellant is legally required to prove the ownership of a family land that is not in dispute. Ground 4.
(E) Whether it is legally available to the lower court to hold in one breadth that appellant is the head of the Oshinio family and that in another breadth he is not in control of the Oshinio family land and as such cannot institute the action herein present.
Ground 5.
(F) Whether the learned trial judge can legally declare and or hold as unreliable the ceremony of appellant’s installation as head of his family without proper evaluation of the evidence in respect thereof. Ground 6.
(G) whether the appellant requires or needs more evidence and or witnesses other than the available one on record to show or impress that he is in control of the administration of his family land.
Ground 7
(H) Whether the judgment not is (sic) against the weight of evidence”. Ground 8
The above issues were argued as issues 1 – 8 in the appellant’s brief.
The respondents on their part formulated six (6) issues for determination. They are:
(i) “Whether the appellant proved his case before the lower court to entitle him to judgment.
(ii) Whether it can rightly be said that the learned trial judge granted the 1st – 15th respondents an unclaimed or unsolicited relief.
(iii) Whether it can rightly be said that the learned trial judge failed to examine or consider Exhibits ‘A’, ‘C’ and ‘C1’ respectively in view of the learned trial judge’s opinion on same in the judgment.
(iv) Whether ownership of the family land is in issue.
(v) Whether the failure of the appellant to call vital witnesses is not fatal to his case.
(vi) Whether the judgment of the lower court is against the weight of evidence.”
When this appeal was argued, the learned counsel to the appellant Taiwo Ogunmoroti Esq. adopted and relied upon the appellant’s brief dated 9th February, 2011, filed on 16th February, 2011, deemed properly fifed on 23rd February, 2011 on an application filed on 22/2/11 as his submission. Also, relied upon was the reply brief dated 29th March, 2011, filed the same day in urging us to allow the appeal and set aside the judgment of the lower court.
On the part of the respondents, the learned counsel to the respondents Bamidele Omotoso Esq,, with A. A. Adeleke (Mrs) adopted and relied on his brief of argument dated 16th March, 2011 and filed on the same day as his submission in urging us to dismiss the appeal and affirm the judgment of the trial court.
In arguing his issue ‘A’ the learned appellant’s counsel submitted that it was improper and unjust for the learned trial judge to have dismissed the first leg of the appellant’s Claim, the appellant having maintained that he is the head of the Oshinio family of Atiba Ikere – Ekiti, the evidence of the PW1 (Olowoyo Dayo) through whom Exhibit ‘A’, the palace judgment was tendered, was to the effect that the 1st 5th defendants (now appellants) had sold 32 plots of land at the rate of N30,000.00 per plot, he also maintained that the appellant is the head of his family and that the plots were illegally sold.
The appellant as PW2 confirmed the evidence of the PW1 as to the headship of his family and tendered Exhibits ‘C’ and ‘C1’, the video cassette of his installation and the interpretation respectively as the head of Oshinio family. He maintained that he is the head of his family and tendered Exhibits ‘D’-‘D8’, his counsel’s letters to the alleged trespassers on the land. S. 3 of the Arbitration Law of Ondo State applicable to Ekiti State was relied upon, to the effect that Exhibit ‘A’ is irrevocable and binding on the parties. Further, that Exhibit ‘A’ has the effect of an order of court, having declared the appellant the head of the Oshinio family, therefore that no family property could be sold, alienated, allocated or granted without the consent, concurrence, consensus, permission or authority of the appellant. Reference was made to the following cases in support, ADELEKE V. IYANDA (2001) 13 NWLR PART 726 page 1 at 16, F – G, OPARAJI V. OHANU (1999) 686 page 41 at 49 line 15, OBINECHE V. AKUSOBI (2010) 12 NWLR (PART 1208) page 383 at 407 paragraphs B – C. It was argued that the trial court ought to have declared the appellant the head of the Oshinio family and granted him all his reliefs, rather than a dismissal. Reliance was placed on the case of BABATUNDE V. OLATUNJI (2000) 2 NWLR page 646 page 557 at 568 E – G and EHOCHE V. IJEGWA (2003) 7 NWLR (PART 818) page 139 at 152 – 153 H – C.
It was the submission of the learned counsel that the appellant’s root of title and membership of Oshinio family were not challenged, particularly his headship of the said family. The learned counsel reviewed the ancestry of the Appellant in line with his evidence that the appellants father Emmanuel Olowoyo was also the head of the family which was not challenged, reliance was placed on the cases of WAEC v. OSHIONEBO (2006) 12 NWLR (PART 994) page 258 at 276 A – B. GAJI V. PAYE (2003) 8 NWLR (PART 823) Page 583, 603 – 604 F – B, A – B. The only challenge was said to be that of the 2nd Respondent who gave evidence claiming the headship of the Oshinio family, and not the appellants, and contrary to the contents of Exhibit ‘A’, S. 132 of the Evidence Act and the case of OGBOLU vs. QUALITY FINANCE LTD (2003) 6 NWLR PART 815 page-147 at 162: 163 B – A were cited and relied upon.
The learned counsel submitted that the 1st – 5th respondents conceded selling various plots of land belonging to the appellant’s family without his consent and relied on Exhibit ‘A’ and the evidence of the PW1. It was further argued that by Exhibits ‘A’, ‘C’ and ‘C1’ respectively, the appellant is the head of the family and his consent and authority ought to have been sought before the family land was sold and for this reason that the first relief sought before the trial court ought not to have failed.
Finally on this issue, it was submitted that the trial court ought to have looked into the legality, lawfulness, regularity or otherwise of such sale, See F.C.E. PANKSHIN V. PUSMUT (2008) 12 NWLR (PART 1101) page 405 at 420 A – B and A. G. LEVENTIS (NIG) PLC V. AKPU (2007) 17 NWLR (PART 1063) page 416 at 436 E – F.
On the appellant’s second issue, the learned appellant’s counsel adopted all his submissions on the first issue. It was contended that the trial court’s holding that the 1st to 5th respondents sold the appellant’s family land as head and principal members of Oshinio family is contrary to the content of Exhibits ‘A’, ‘C’ and ‘C1’ respectively, in that the 1st and 2nd respondents submitted to Exhibit ‘A’, and oral evidence cannot change or alter its content which pronounced the appellant head of the family.
It was further contended that the respondents did not counterclaim and that the trial court ought not to have found in their favour, and cannot grant what was not asked for, reliance was placed on the case of AKINBOBOLA V. PLISSON FISKO (1991) 1 NWLR (PART 167) PAGE 270 at 283 paragraph G.
In alternative argument, it was submitted that, assuming the trial court had the power to make a consequential order; such order cannot stand in view of the available evidence before the court, especially Exhibit .A,. It was the argument of counsel that the 2nd respondent, who claims he is the head of the family of the appellant conceded headship of the family to the appellant through Exhibits ‘A’, ‘C’ and ‘C1’ respectively and the trial court ought to have declared the evidence of the respondents as unreliable, see EZEMBA V. IBENEME (2000) 10 NWLR (PART 674) page 61 at 74 PARAGRAPHS B – C.
In arguing the appellant’s issue three, the learned counsel also adopted his submissions on issues one and two, and relied on Exhibits ‘A’, ‘C’ and ‘C1’ to prove that the appellant is the head of the Oshinio family. It was the submission of counsel that the learned trial judge did not appraise the content of Exhibit ‘A’ but relied on the oral evidence of the respondents without any reason, see OKONJI V. NJOKANMA (1991) 7 NWLR (PART 202) 131 at 146 paragraph A, and IDAKWO v. NIGERIAN ARMY (2004) 2 NWLR PART 857 page 2491 AT 267 – 268 F – C. We were urged to allow the appeal on this ground.
In the appellant’s issue four, it was submitted that the Oshinio family land is not in dispute or in issue, that what is in issue is the headship of the said family and the illegal sale of the family land without the consent of the family head. Also, that the parties are ad-idem on the ownership of the land in conceding that Oshinio family owns the land. It was argued by the learned counsel that the respondents have tampered with the safe of several plots of land belonging to the Oshinio family and the appellant as the head ought to have been consulted before such sales are undertaken or perfected.
It was argued that the trial court confused the ownership of the family land with sale of the said family lands which issue was said not to have been raised, see F.M.F. LTD V. EKPO (2004) 2 NWLR (PART 856) PAGE 100 AT 120 B – E. The claim of the appellant as plaintiff at pages 7 – 8 of the records were said not to include ownership, alleged to have been brought in by the trial court, as same was not contained in the reliefs sought.
In respect of the appellant’s issue five, it was argued that the learned trial judge held that the appellant is the head of the Oshinio family and on the other hand held that he is not, which amounts to blowing hot and cold. Reliance was placed on the cases of ODUTOLA HOLDINGS LTD V. LADEJOBI (2006) 12 NWLR (PART 994) page 321 at 36 paragraphs B – C, NDAH V. CHIANUOKWU (2006) 17 NWLR (PART 1007) page 74 at 93 paragraphs C – E and INEC V. ACTION CONGRESS (2009) 2 NWLR (PART 1126) page 524 at 586 G.
Under the appellant’s issue six, it was submitted that the appellant gave evidence concerning a ceremony that was performed on him as the head of the Oshinio family in which Exhibits ‘C’ and ‘C1’ were tendered, this piece of evidence was said not to have been challenged, controverted or varied and deemed admitted. See, ANTHONY V. GOVERNOR OF LAGOS STATE (2003) 10 NWLR (PART 828) page 288, 302 D. The learned appellant’s counsel contended that the learned trial judge did not properly evaluate the evidence in respect of the installation of the appellant as head of Oshinio family but, speculated that the ceremony could have been any other ceremony other than the installation ceremony of the appellant as the head of the Oshinio family and that the court ought to have properly evaluated the evidence before it and not substitute its opinion for the evidence before it, the case of ODEJIE V. FAGBO (2004) 8 NWLR (PART 874) page 1 at 25 – 26 paragraphs H – B was cited and relied upon.
On the appellant’s issue seven, it was argued that a party need not call an avalanche of witnesses as one could be sufficient, Section 179 of the Evidence of Act and the case of ACHAR VS. ADEJOH (2010) 6 NWLR (PART 1191) page 537 at 578 paragraph B were cited and relied upon in support. It was argued that the evidence of the appellant as PW2 and that of the PW1 (Dayo Olowoyo) as members of Oshinio family, it was wrong, therefore for the learned trial judge to have held that the 1st and 2nd respondents ought not to have been held to be head and principal members of the family respectively, more so when the respondents did not call any member of the family to testify on their behalf and they did not counter claim, it was argued to have been improper for the trial court to have given judgment in favour of the respondents, and relied only on the evidence of 1st, 2nd and 9th respondents as DW1, DW2 and DW3 respectively.
It was argued that the learned trial judge did not utilize Exhibit ‘A’, ‘C’ and ‘C1′ which led to a miscarriage of justice.
On the appellant’s eighth and last issue, the learned counsel adopted his argument canvassed under issue seven in submitting that the decision of the trial court is against the weight of evidence. The argument and submissions in respect of all the other issues were summarized under this issue. The judgment of the trial court was said to be perverse and should be set aside. Reliance was placed on the following cases: EZEANWU VS ONYECHI (1996) 3 NWLR (PART 438) PAGE 499 at 526 paragraphs C – E; GBAFE V. GBAFE (1996) 6 NWLR (PART 455) 41 at 436 paragraphs E – R and NKAOLO V. OBIANO (1997) 5 NWLR (PART 503) 31 at 56 paragraphs B – C. We were urged to resolve all the issues in favour of the appellant.
In response, the learned respondents’ counsel Bamidele Omotoso Esq., in the respondents’ brief raised six issues which were earlier reproduced in this judgment. In arguing his first issue, it was submitted that the first relief (a) sought before the trial court is declaratory while reliefs (b) (f) are ancillary reliefs and contradictory to the declaratory relief sought in relief (a). It was argued that the plaintiff who sought a declaratory relief ought to have satisfied the court through credible and positive evidence in proof of his claim; he ought to satisfy the court that he is entitled to the relief, and has a right or interest in respect of the declaration sought. see: ALAO v. AKANNI (2005) 11 NWLR (PART 935) 160 at page 173 paragraphs E – F; 175 paragraphs E – G.
It was submitted that for the appellant to succeed he has to prove that he is the head of Oshinio family and that the sale by 1st to 5th Respondents to 1st to 15th respondents was done without his consent since by Yoruba custom, sale or lease of family land by principal members without the consent of the head of the family is void ab initio, see: ADEJUMO V. AYANTEGBE (1989) 3 NWLR (PART 110) 417 at page 444. In this case, the 1st – 5th respondents have challenged the headship of the Oshinio family by the appellant who pleaded that he instituted this action for himself and other members of the Oshinio family, in paragraph 2 of the statement of claim, page 3 of the printed records. Whereas, the respondents in paragraph 3 of the amended statement of defence denied the said paragraph 2 above and refuted the plaintiff’s claim to be the head of Oshinio family, not even a member of the family, page 37 of the records. Further, that the burden was on the plaintiff to prove membership and headship of Oshinio family, reference and reliance was placed on Section 137 (1) of the Evidence Act and the cases of BANK OF THE NORTH V. ONYIO (2002) FWLR (PART 129) 1492 at 1503, YUSUF & ORS V. MR. TOLUHI & ANOR (2002) FWLR (PART 119) 1430 at 1445 and ACB PLC & ANOR V. EMOSTRADE LTD (2002) FWLR (PART 104) 540 at 550.
It was the submission of the learned counsel to the respondents that the appellant failed to prove his membership and headship of Oshinio family. Also, that apart from his son, no principal member of his family testified on his behalf, having claimed to have been the head of the Oshinio family for a period of nine (9) years with the knowledge of all Oshinio family members. It was the submission of counsel that the appellant in paragraph 18 of his statement of claim averred that the 1st to 5th respondents are members of Oshinio family of Atiba Street, Ikere Ekiti, page 4 of the records, while in his evidence, at page 80 of the records, testified that lst to 4th respondents are not members of Oshinio family contrary to the earlier part of his testimony at page 79 of the records where he testified that 1st to 5th respondents are principal members of the Oshinio family. In the same vein the appellant’s son under Cross Examination was said to have contradicted his father when he testified that the 1st to 5th defendants (respondents) are members of Oshinio family.
Further, that the appellant was not the maker of Exhibits ‘C’ and ‘C1’. It was argued that the learned trial judge was justified in not attaching any probative value to these Exhibits even though they were admitted in evidence. The case of U.B.N. PLC VS. SPARKLING BREW LTD (2000) 15 NWLR (PART 689) 200 at 211 – 212 paragraphs C – A was cited and relied upon. It was argued that a box where the family keeps money which the appellant testified that he has custody of was not tendered and that this amounted to withholding evidence by virtue of section 149 (d) of the Evidence Act, WACC LTD V. TAROLINE POULTRY FARM LTD (2000) 2 NWLR (PART 644) 197 at 204 C – G. The learned counsel submitted that the 2nd respondent gave evidence to the effect that he was the head of Oshinio family while the 1st respondent was the secretary, both refuted the appellant’s contention that he is the head of Oshinio family, it was argued that these pieces of evidence were credible, and that the learned trial judge was right to have acted on same.
It was argued that Exhibit ‘A’ cannot operate as estoppel by customary arbitration as no credible evidence was led on the ingredients necessary to sustain the plea of estoppel by custom any arbitration. Further, that the 1st and 2nd respondents were the only respondents who appeared before the palace arbitration and that there is no evidence to show that they voluntarily submitted themselves to the palace court. Also, that the appellant having instituted this action before the trial court against the respondents cannot turn round to plead estoppel. The appellant was said not to have proved his entitlement to the declaratory relief sought and therefore not entitled to any of the ancillary reliefs.
On their second issue, the learned counsel to the respondents submitted that the respondents in their evidence before the trial court admitted selling the family land in their capacities as the head and principal members of Oshinio family and no more, that the learned trial court only reviewed the evidence on record at page 93 of the records, contrary to the contention of the learned appellant’s counsel that the trial court granted a relief to the 1st to 5th respondents which was not sought.
In the respondents’ third issue, it was submitted that it is trite that where a trial court fails to properly evaluate evidence, the appellate court is in a position to do same, see, Section 16 of the court of Appeal Act, and the case of DALFAM NIG. LTD v. OKAKU INT. LTD (2001) 15 NWLR (PART 735) 203 at 257 – 258 paragraphs E -C, and that the learned appellant’s counsel has not called upon this court to evaluate Exhibits ‘A’, ‘C’ and ‘C1’, which were said to lack probative value, Further, that the appellant was not the maker of Exhibits ‘A’, ‘C’ and ‘C1’, the video cassette was not played in open court and the appellant’s counsel did not draw the attention of the trial court to the specific areas he wanted the trial court to consider in the exhibits, see: NWALA v. REGISTERED TRUSTEES RECREATION CLUB (2004) FWLR (PART 190) 1360 at 1380 – 1. On the other hand, that Exhibits ‘A’, ‘C’ and ‘C1′ are hearsay documentary evidence, not being the maker that the appellant could not be cross examined on same, and therefore lack probative value. See, FLASH FIXED ODDS LTD V. AKATUGBA (2001) 9 NWLR (PART 717) 46 at 63 paragraphs D – E. On whether ownership of the family land was in issue, argued under the respondent’s issue four, learned counsel reviewed the pleadings and the evidence proffered by the parties, particularly paragraph 41 (a) of the Statement of Claim, page 7 of the printed records, also paragraphs 20, 21, 22, 24, 25, 28, 29, 30, 39 and 40 of the Statement of Claim as well as paragraphs 14, 15, 16, 31, 38 and 40 of the amended statement of defence. Part of the evidence of the PW1 (Dayo Olowoyo) the appellants son was reviewed, pages 72 – 75 of the records, to the effect that 1st to 5th defendants sold the land to the 6th 15th defendants without the consent of the head of the family, he tendered the receipts and details of the number of plots sold and the amount paid.
The evidence of the appellant as PW2 was reviewed (even though, recorded as PW1) at page 76 of the records, to the effect that part of Oshinio family land was sold without his consent, and approval as the family head. It was argued that from the above pleadings and evidence of the parties, the ownership of the land was in issue, and that the learned trial judge was right in holding that since the appellant claimed ownership of the family land, the burden was on him to prove his allegation. It was submitted that the appellant failed to prove that the land belongs to him.
Under the respondents’ fifth issue, it was argued that the appellant’s son who was his only witness is not a principal member of the Oshinio family and that the appellant’s failure to call at least one principal member of Oshinio family to give evidence in his favour is fatal to his case, see: IGBE V. ELEKI (2000) 10 NWLR (PART 674) 221 at 227 paragraphs D – E, and the trial court right in holding that the family the appellant said he instituted the action for seemed to have turned their back on him.
All the argument and submissions of the learned respondents’ counsel in arguing issues 1, 2, 3, 4 and 5 were adopted in respect of their six, in urging us to resolve all the issues in favour of the respondents. We were urged to affirm the judgment of the trial court and dismiss the appeal.
In his reply, the learned counsel to the appellant in reaction to issue one in the respondents’ brief, submitted that Exhibit ‘A’, the palace judgment is sufficient proof that the appellant is the head of the Oshinio family which no oral evidence can alter, cancel or obliterate, being a document, see: B. MAFANG (NIG) LTD V. M/S.O.I. LTD (2007) 14 page 109 AT 137 – 13g H – A. He submitted that all that was required was for the appellant to give evidence in relation to what is contained in Exhibit ‘A’, which he did, by virtue of section 133 (4) and (6) of the Evidence Act. see: OMONIYI V. U.B.A. (2001) 5 NWLR (PART 705) page 240 at 248 – 29 H – A. Also, that Exhibit ‘A’ was pleaded, tendered in evidence and speaks for itself, and also the best evidence of its contents, see ATANDA v. IFELAGBA (2003) 17 NWLR PART 649 page 274 at 288 C – F. It was urged that in respect of Exhibits ‘C’ to ‘C1’ custody is not the issues but, relevancy, see, ADEBAYO V. ADUSEI (2004) NWLR (PART 862) page 44 at 80 – 81 H – D.
Without conceding, assuming the appellant contradicted himself the learned appellant’s counsel submitted that for contradictions to be material and fatal they must touch on facts forming the basis of the case, see FATOBA V. OGUNDAHUNSI (2003) 14 NWLR PART 480 page 323, 347 D – F, 348 – 349 G – G, 354, A – B. It was argued that the basis of the appellants case is that the family land was sold without his consent as the family head and that the respondent should render account and that any alleged contradiction (which is not conceded) did not contradict the plank of the appellant’s case. Further, that the respondents cannot now raise the issue of Exhibit ‘A’ not being pleaded as it was not raised before the trial court, therefore that the issue of Exhibit ‘A’ not operating as estoppel by customary arbitration is therefore deemed abandoned, not having been raised before the trial court.
It was the submission of counsel that a party cannot complain of an irregular procedure or conduct when he acceded to it, see: AFRICAN RE CORP V. AIM CONSULT LTD (2004) 11 NWLR PART 884 page 223 at 239 – 240 A – C, reference was also made to paragraph 36 of the appellant’s statement of Claim and paragraph 2 (f) of the Reply to Statement of defence at page 24 of the records, therefore that what is admitted needs no further proof, since the respondents voluntarily submitted to Exhibit ‘A’.
It was the submission of counsel that estoppel could be used as a weapon of attack, and relied on the case of EYO V. OKPA (2006) 6 NWLR (PART 1191) 611 at 634 A – B.
The learned appellant’s counsel refuted the argument of the learned respondent’s counsel that their relief (A) is contradictory to relief (B), he submitted that the reliefs are distinct and relied on the case of OGUNLADE V. ADELEYE (1992) 8 NWLR PART 260 page 409 G – H; without conceding, that even if contradictory, that the Court of Appeal could in its discretion under Section 16 of the court of Appeal Act exercise its discretion to arrive at the justice of the case.
In respect of the respondents’ issue three, the learned counsel’s response is that Exhibits ‘C’ and ‘C1′ concern the appellant who is entitled to tender same, and would not amount to hearsay, and that it is when the authenticity is in issue that the maker need be called, which is not the case here. See, N.B.C. PLC vs UBANI (2009) 3 NWLR (PART 1129)-page 512 AT 541 C – D.
Before I go into the merit or otherwise of the appeal, I will not fail to comment on the number of issues formulated by the appellant. The appellant formulated eight issues out of his eight grounds of appeal, the eigth being the omnibus ground. The appellant in arguing his issue (A) in his brief’ from part of page 7 to middle of page 12, the issue was comprehensively argued. Meanwhile, issues (B) – (H) was from middle of page 12 to page 18. It is obvious the first issue covered almost half of the appellant’s brief of argument. In arguing the appellant’s second issue (B), learned counsel adopted his submissions on issue number one (A) in support of his argument on this issue at page 12 of his brief, he said:
“I most humbly adopt my submissions on issue number one in support of my argument on this issue.”
Irrespective of the above, learned counsel went ahead to make further submissions in respect of issue B. Similarly, under the third issue, once again learned counsel adopted his arguments under issues ‘A’ and ‘B’ above, at page 13 of his brief, he said:
“I most humbly adopt my submissions on issues number one in support of my argument on this issues.”
As done, earlier, learned counsel reargued and made further submissions covered under issues ‘A’ and ‘B’. I observed that issues (B) and (3) (should have been (C) for consistency) dealt with Exhibits ‘A’, ‘C’ and ‘C1’ extensively, (tendered by the appellant) on which the appellant’s case is hinged. The same Exhibits had been adequately dealt with under issue ‘A’. The same Exhibits ‘C’ and ‘C1’ were the only pieces of evidence reviewed under issue 6 (should have been ‘F). In the same vein, under issue 7 (issue G) the appellant’s Exhibits ‘A’, ‘C’ and ‘C1’, were once again reviewed and highlighted. Finally on this, under issue 8 (H), learned counsel submitted thus: “appellant adopts all the argument proferred and canvassed in respect of the 7 issues above”, and went ahead recapping all the arguments in the already argued issues A – H (1 – 7) and highlighted the same Exhibits ‘A’, ‘C’ and ‘C1’. The question at this juncture is: what is the essence or the purpose of the multiple and repetitive issues? They do not serve any useful purpose, but rather makes the resolution of the real issues cumbersome and long winded.
The Apex court and this court have in many cases frowned at proliferation of issues in brief writing by formulating more issues than are necessary to resolve the real issues at stake, it is undesirable. The Apex court in the case of HIGH-GRADE MARITIME SERVICE LTD V. FIRST BANK OF NIG. LTD (1991) 1 NWLR (PART 167) 290 at page 311 observed as follows:
“This court has constantly counsel led and warned counsel to refrain from prolixity in the formulation of issues for determination. The principle has always been and still is that an issue should be formulated as encompassing a number of grounds of appeal.”
In the same way in the case of CLAY IND. (NIG) LTD V. AINA (1997) 8 NWLR (PART 516) 208 at 233 the same court held that:
“It cannot be overemphasized that the object of the formulation of issues for determination in an appeal is to enable the narrow and accuracy (sic), thus enabling the court to consider together a number of associated and related grounds of appeal within the issue to which they are related in the determination of the appeal. See RAPHAEL AGU V. CHRISTIAN IKEWIBE (1991) 3 NWLR (PART 180) 385 at 401. Issues must not only be related to the grounds of appeal filed, it is improper to formulate unnecessarily lengthy and repetitive issues. An unnecessary proliferation of issues is totally undesirable and has times without number been frowned at and discouraged by this Court. See OGBUANYINYA v. OBI IKUDO (NO.2) (1990) 4 NWLR (PART 146) 551 at 567 and ARIL V. UZORKA (1993) 8 NWLR (PART 309) 1 A 17.
…………………………………………
An issue to be determined can take care of, and related to a number of grounds of appeal.”
It is the practice and tradition of this court that issues for determination must be fewer than the grounds of appeal. An issue would in most cases, cover more than one ground. In other words, one issue can oversee more than one ground of appeal, and thus makes an issue a collection of grounds of appeal. Of course there are instances where an issue is formulated from a single ground of appeal. Such instances do arise and could be regarded as the exception to the accepted tradition. In the present case where eight issues have been formulated from eight grounds of appeal and in the first issue formulated from the first ground, the issue comprehensively dealt with evidence and exhibits the appellant has complained the trial court did not properly evaluate or utilize, otherwise it would not have dismissed the first leg of the appellant’s prayers before the trial court, based on which the trial court also dismissed all the other reliefs (reliefs 2 – 6), this first issue was formulated from ground 1.
More so, as I stated earlier in this judgment, in arguing issue two (B), learned counsel adopted the submissions on issue one (A), and in arguing issue 3 (C) adopted argument on issues A and B and so on, and in arguing issue eight (H) adopted argument on issues 1 – 7. Since argument on subsequent issues adopted those of earlier issues, there was certainly no need to formulate an issue on every ground, already covered by previous issues, it is excessive and the Apex Court time without number has frowned at this practice, I cannot say more or add to the Apex Court’s caution against this practice. The issues in the present case do not fall under the category or under the exception. The grounds of appeal in this case do not give rise or do not necessitate formulation of an issue from each ground of appeal, more so when the same evidence and Exhibits were being reviewed in most of the issues, it is undesirable. See the cases of ORAKWUTE V. AGAGWU 8 NWLR (PART 466) 359 at-370, OKONKWO v. IKEGWUOHA (2002) 10 NWLR (PART 744) 76 at 86, ATTORNEY- GENERAL OF BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PART 118) 646, BURAIMOH V. BAMGBOSE (1989) 3 NWLR (PART 109) 352, UTIH V. ONOYIVWE (1991) 1 NWLR (PART 116) and OYEKAN V. AKINRINWA (1996) 7 (PART 459) 128.
It is trite that issues for determination are to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and precision. Prolixity of issues is repetitive, which does not improve the argument canvassed, if anything, if care is not taken it diverts attention from the key issues to be determined in the case to the subsidiary ones which in my humble opinion may result in injustice, it is also irritating and boring. No counsel would want his case determined by a bored and/or irritated court.
From the issues formulated by the parties, those raised by the appellant cover all the ones raised by the respondents. The issues can be narrowed down to the appellant’s issue A and respondents’ issue (i), and the appellant’s issue D with the respondents’ issue (iv). These can be summarized as follows:
1. Whether the appellant proved his case before the lower court to entitle him to judgment.
2. whether ownership of the family land is in issue.
These two issues encompass all the issues raised by both parties in this appeal; resolution of same would be adequate to answer all the questions to be determined.
I would start with issue two above.
From the claims of the appellant as plaintiff, the issues at stake are clear, and would be determined by the pleadings and evidence led in support of the claims. Relief (a) sought by the appellant is for a declaration that the purported sale or alienation of the plaintiff’s family land by the 1st – 5th respondents to the 6th – 15th respondents is illegal, unlawful, null and void. As highlighted by the learned counsel to the respondents, paragraphs 20, 21, 22, 24, 28, 29,30, 39 and 40 of the statement of claim and paragraphs 14, 15, 16, 31, 38 and 40 of the amended statement of defence show that the ownership of the land in question is in issue, contrary to the argument of the learned counsel to the appellant that the ownership of the appellant’s family land is not in issue.
The law is that parties are bound by their pleadings, see, IFETA v. SPDC (NIG( (2006) 31 WRN 1; (2006) 8 NWLR (PART 983) 585 and OTANMA V. YOUDUBAGHA (2006) 10 WRN 1; (2006) 2 NWLR (PART 964) 377 and the recent decision of this court in REG. RCCG VS. BANKOLE (2011)14 WRN 138 in which I was privileged to have delivered the leading judgment. Further, relief (d) claimed damages for trespass, and reliefs (e) and (f) sought injunctive reliefs. The appellant claimed to be the head of Oshinio family whose consent is required before a valid sale by members of the Oshinio family, in this case the 1st – 5th respondents, while the 1st – 5th respondents say he is not a member of their family talk less the head. No doubt, any sale of family land must be with the consent of the larger family including the family head but, the headship of the family as well as the ownership of the land, must obviously be established. See REG. RCCG VS. BANKOLE (2011) SUPRA.
The sole witness called by the appellant was his son Olowoyo Dayo – PW1, gave evidence to the effect that the 1st – 5th respondents sold the land in question to 6th – 15th respondents without the consent of the head of the family, page, 72 of the records. The witness gave details of the sale, that is, the number of plots sold, the amount paid, the buyers and receipts. As rightly argued by the learned counsel to the respondent, the appellant as PW2, page 76 of the records also gave evidence as to his headship of the family of Oshinio and how the land was sold without his consent. I earlier reproduced the appellant’s Claims before the trial court.
It is the law that where there is a claim for trespass and injunction as the appellant claimed in the present case, the title of the parties to the land in dispute is certainly put in issue. I am of the humble opinion that the learned trial judge was right to have held at page 96 of the printed records that the plaintiff who instituted this action and claiming ownership of the family land had the burden of proving his allegations. (1) That he is a member of Oshinio family (2) that he is the head of the family, when this is done, his consent would be required for any valid sale of family land by other members of the family. The appellant was under the burden of proving ownership and that he is entitled to the declaration sought, It is without doubt that ownership of the land was in issue. The appellant prayed that the sale or alienation of the appellant’s family land by 1st – 5th respondents to 6th-15th respondents be declared null and void and of no effect but, has the appellant proved that the land belongs to him and also that he is the head of the Oshinio family?
The burden is on a plaintiff to prove his case in a land matter when seeking a declaration of title, as is from relief (a) sought in the trial court, by producing sufficient and satisfactory evidence in support of his claim. Has the appellant as plaintiff proved that he has a better title than the respondents? The burden never shifts to the defendant whose duty is only to defend unless he has counter claimed see, KAIYAOJA V. EGUNLA (1974) 12 SC 55,KONDILINYE V. MBANEFO ODU (1935) 2 WACA 337. Also, MOGAJI & ORS V. CADBURY NIG LTD & ORS (1985) N.S.C.C. (VOL. 16 PART 11) 959; 1985 2 NWLR (PART 7) 393; OKAFOR V. IDIGO III & ORS (1984) N.S.C.C. (VOLUME 15) 350; 1984 1 SC NLR 481 BENIGNUS DURU & ANOR V. JONATHAN NWOSU (1989) 4 NWLR (PART 113) 24 and AKINTOLA v. BALOGUN (2000) 1 NWLR (PART 642) 532.
A plaintiff must succeed on the strength of his case having claimed for a declaration that would confirm title to him if he succeeds, he must prove it. He who asserts must prove, see, Sections 136 and 137(1) of the Evidence Act, also the cases of IBRAHIM V. OJAINO (2004) 11 WRN 1; (2004) ALL FWLR (PART 199) 1285; (2004) 4 NWLR (PART 862) 89, OKOCHUKWU V.NDAH (1967) NWLR 368, NBN LTD VS. OPEOLA (1994) 1 NWLR (PART 319) 126, CHUKWUJEKWU V. OLALERE (1992) 2 NWLR (PART 221) 86 and F.M.F. LTD V. EKPO (2004) 2 NWLR (PART 856) 100. If evidence is not adduced in support of the assertion/facts he who seeks to rely on same would fail.
The burden of proof was on the appellant who ought to have established his membership and headship of the Oshinio family, in absence of such evidence the issue would and is resolved against him.
In proof of his case the appellant testified and called only his son as his witness, None of the principal members of Oshinio family was called to testify in his favour which is fatal to his case having also brought this action as representing other members of Oshinio family of Atiba, Ikere- Ekiti. The learned trial judge shared this view and cannot be faulted. In my humble opinion the appellant did not prove that he is a member of the Oshinio family. Further, as to his headship of the family no evidence was led by the appellant to show how he emerged as the head of the family, was it by seniority, election or appointment? Also the members of the family who elected or appointed him or who could testify that he was the most senior assuming it was by seniority. It is also surprising that the appellant who claimed to have been the family head for Nine (9) years with the knowledge of the entire family could not get any of the family members who he was supposed to be representing in this case to testify on his behalf, except his direct son, whose evidence was at a stage at variance with the appellant’s. His son as PW1 admitted that the 1st – 5th respondents are members of the Oshinio family, while the appellant averred that, the 1st – 5th respondents were members of Oshinio family and at the same time that they were not. As it is, the appellant is not sure if the 1st – 5th respondents are members of the Oshinio family (which he claims he is part of) or not, see paragraph 18 of the statement of claim (page 4 of the records) pages 75, 79 and 80 of the printed records. In agreement with the submissions of the learned counsel to the respondents the appellant does not seem to know who the members of Oshinio family are (whom he claims to be part of) and does not know who the principal members are.
The appellant relied heavily on Exhibit’A’, a copy of the judgment of the Ogoga’s palace and urged us to utilize same to operate as estoppel by customary arbitration.
It is trite now that estoppel can only be used as a shield, not a sword of attack. In this present case the appellant who has raised the issue of estoppel is an appellant who was plaintiff before the trial court. For the plea to succeed the party relying on it must show that:
1. The parties/privies were the same,
2. The issues involved and or the subject-matter of the suit must be the same,
3. The case sought to be relied upon in the subsequent suit was adjudicated upon by a court of competent jurisdiction. (in this case customary arbitration)
see, the cases of IYAYI V. EJIEBE (1987) 3 NWLR (PART 61) 523, EZENWA V. KAREEM (1990) 21 N.S.C.C. (PART 11) 284 at 290; (1990) 3 NWLR (PART 138) 258 at 268.
The essence of an estoppel whether res judicata or issue estoppel as claimed in this case, are one and the same stock or specie by the courts it is to discourage prolongation of disputes or proliferation of litigation once a matter or issue is settled once and for all by a court of competent jurisdiction, in this case a palace custom any arbitration. In MUSARI V. OGUNFODUNRIN (1996) 9 NWLR (PART 470) 1, this court held concerning the object of estoppel thus:
“A party whether successful or otherwise in such a case already decided should not be allowed to have a second bite of the “legal cake”.
See, CHIEF G. A. TITILOYE & 4 ORS V. CHIEF J. OMONIYI OLUPO & 4 ORS (1991) 7 NWLR (PART 205) 519 at 544; ADEDAYO V. BABATOLA (1995) 7 NWLR (PART 408) 383 at 409 – 410; FADIORA VS GBADEBO & ANOR (1978) 3 S. C. 291 and IYOWUAMI V. IYOWUAWI V. IYOWUAWI (1987) 4 NWLR (PART 63) 61.
In the present circumstances bearing in mind the conditions under which estoppel could be properly pleaded, since the appellant was the plaintiff, he would not want to be bound by the custom any palace judgment, Exhibit ‘A’. With a close look at Exhibit ‘A’ the parties were not the same and the issues or subject matter to be decided are not the same. Exhibit ‘A’ did not consider and decide on the issues now before this court, that is, the appellant being a member of Oshinio family member or not, his headship of the same family and whether the 1st – 5th respondents sold their family land to the 6th – 15th respondents without his consent and head of the family. In paragraph 36 of the statement of claim, page of the records and page 10 of the respondents’ brief of argument the appellant also averred that:
“………………………………………………………..
The first and second defendants did not comply with the said judgment. Palace judgment in case No. 65 (land encroachment) is hereby pleaded and shall be relied upon at the tribal (sic)”.
For whatever Exhibit ‘A’ is worth, the 1st – 2nd respondents who were part of the complaint in Exhibit ‘A’ did not comply with it. The law is also that the plea of estoppel would be available (in this case to the respondent!) if they complied religiously with the decision of the arbitration. In anyway one looks at it, the appellant cannot utilize Exhibit ‘A’ and the issue of estoppel to establish that he is the head of Oshinio family or that he is even a member of the family. NZEAMA VS. UGOCHI (2001) 29 WRN 179 at 185. Further, it is not proper for the appellant who was the plaintiff to rely on previous customary arbitration that was in his favour by the plea of estoppelr make out that he does not want to be bound by it. It is not reconcilable.
The 1st – 5th respondents admitted selling Oshinio family land which the appellant also says they did, which is the crux of this case but, I am of the humble but, firm view that the appellant who claims to be the head of the Oshinio family needed to adduce credible and cogent evidence to show that he is the head of the family and that their family land is under his control and administration, the view of the learned trial judge to this effect is unassailable, page 94 of the records. The appellant, I am afraid did not discharge the burden placed on him, and the learned trial judge was right in holding that he did not, while relying on the case of MOGAJI vs. ODOFIN (1979) (SUPRA).
The appellant relied heavily on Exhibits ‘C’ and ‘C1 the video cassette and the translation respectively. Exhibit ‘C’ was said to be the video recording of the appellant’s installation as head of the Oshinio family. Even though the Exhibits were admitted in evidence before the trial court, the learned trial judge did not attach any probative value to the Exhibits and the law permits it, the court was not under any obligation to utilize the content of Exhibits ‘C’ and ‘C1’, to talk of using same to establish that the appellant is the head of the family. There is nothing on record to show that Exhibit ‘C’ was played in open court for all to see. No evidence was led to highlight the contents; this would only be possible if it had been played in open court and the relevant part that would help the appellant’s case highlighted, backed up by oral or other evidence, which was not the case. No cross examination could have been conducted on it, having been tendered by the appellant who was not the maker. In my humble view the learned trial judge was right not to have attached any probative value to these Exhibits.
The law is that where evidence has been wrongly admitted, the evidence would be expunged or discountenanced from the records when the judgment is being considered. The basis is that the evidence does not go to any issue, the resultant effect being that it cannot be legal evidence upon which a court can properly make a finding of fact. See, AGBAJE V. ADIGUN & ORS (1993) 1 NWLR (PART 269) 261; NATIOAL INVESTMENT & PROPERTIES CO. LTD V. THOMPSON ORGANISATION LTD (1969) ALL NLR 138; OKONJI V. NJOKANMA (1991) 7 NWLR (PART 202) 131; HASSAN V. MAIDUGURI MANAGEMENT COMMITTEE (1991) 8 NWLR (PART 212) 738) and NAMSON V. STATE (1993) 5 NWLR (PART 292) 129 at 144.
The learned trial judge was therefore right not to have attached probative value to Exhibits ‘C’ and ‘C1’ in holding that the ceremony could have been any other, rather than installation of the appellant as head of Oshinio family.
In the final analysis, I am of the humble but, firm view that the appellant has not proved his membership and headship of Oshinio family Atiba, Ikere-Ekiti, in consequence, he did not prove the illegal sale or alienation of the appellant’s family land without his consent. The declaration sought in paragraph (a) of the reliefs sought before the trial court fails and cannot be granted, Naturally the ancillary reliefs sought in paragraphs (b) and (c) also fail. The appellant having failed to prove ownership or being in control of the land in dispute as family head, trespass has not been proved and he would not be and is not entitled to any damages. In the same vein having failed with prayer (d) the injunctive orders sought in prayers (e) and (f) cannot be granted, and also fails, evidence upon which a court can properly make a finding of fact.
In sum, the appeal is without merit and fails in its entirety, same is hereby dismissed. The judgment of the trial court of 21st January, 2008 sitting at Ikere-Ekiti Judicial Division of the Ekiti State High Court in suit No.HCR/10/2005 is hereby affirmed.
I award costs of N50,000.00 (Fifty Thousand Naira) to the respondents.
UWANI MUSA ABBA AJI, J.C.A.: I have been privileged to read before now the judgment of my learned brother C. N Uwa, JCA, just delivered.
I agree with the reasoning contained therein and the conclusion arrived thereat that the appeal is without merit.
I also dismiss the appeal and affirm the judgment of the trial court delivered on the 21st January, 2008.
I abide by the order as to costs.
HARUNA M. TSAMMANI, J.C.A.: I was privileged to have read before now the lead judgment delivered by my Lord, Chidi Nwaoma Uwa, J.C.A.
My lord admiringly resolved all the issues that arose for determination in this appeal. I therefore have no hesitation in agreeing with His reasoning and conclusions thereon. I adopt same as mine as I have nothing else useful to add. Accordingly, I also find that this appeal has no merit and is hereby dismissed entirely. The judgment of M. A. Agbelusi, J of the Ekiti State High Court, Ikere-Ekiti Judicial Division, the subject of this appeal, is hereby affirmed.
I abide by the order as to cost.
Appearances
Taiwo Ogunmoroti Esq.For Appellant
AND
Bamidele Omotoso Esq., with A. A. Adeleke (Mrs)For Respondent
