MRS. FLORENCE KOKUMO AWOPEGBA v. MR. RASAKI ADELORO & ANOR (2012)

MRS. FLORENCE KOKUMO AWOPEGBA v. MR. RASAKI ADELORO & ANOR

(2012)LCN/5704(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of December, 2012

CA/B/281/2010

RATIO

APPEAL: HOW IS THE VAGUENESS OR OTHERWISE OF THE GROUND OF APPEAL DETERMINED

In determining the vagueness or otherwise of the ground of appeal, that ground of appeal will be considered together with the particulars supplied because particulars are not independent of the ground of appeal but ancillary to it. If taken together, it is still difficult to identify or appreciate the alleged complaint against the judgment, then the ground of appeal must be taken as vague and in contravention of Order 6 rule 3 of the Court of Appeal Rules 2007 as amended. See Ogundare Osasona v. Oba Adetoyinbo Ajayi & Ors. (2004) 18 NCSQR, 40: (2004) LPELR – 2790(SC). Per Uwaifo J.S.C. PER CHINWE EUGENIA IYIZOBA, J.C.A.

BRIEF: CONSEQUENCE OF A DEFECTIVE BRIEF

In the case of Chief Thomas Ekpemupolo & Ors. v. Godwin Edremoda & Ors. (2009) 8 NWLR (Pt. 1142) 166; (2009) LPELR-1089 (SC), the Supreme Court held:-

“It has been stated and restated by the two Appellate Courts and held by them in a line of decided authorities, that an inelegant or bad or defective Brief need not be struck out (how much more dismissing an appeal on that ground). That the court should make the best that it can out of it. See the cases of Chinweze & 2 Ors. v. Mrs. Veronica Masi & Anor. (1989) 1 NWLR (pt. 97) 245; (1989) 1 SCNJ 148; Gbafe v. Prince Gbafe & 3 Ors. (1996) 6 NWLR (pt. 455) 417; (1996) 6 SCNJ 167 @ 178 – Per Adio, JSC, citing the case of Obiora v. Osale (1989) 1 NWLR (pt. 97) 278, @ 296, 302, 303; (1989) 1 SCNJ 213 (the last two also cited and relied on in the Appellant’s Amended Brief);… In fact in Obiora v. Osele (supra), Oputa, JSC @ 302 and 303 of the NWLR Report, stated inter alia, as follows:… ‘The aim of the whole exercise is to do justice between the parties by hearing their appeals on the merits in spite of any mistake made by counsel in the preparation and prosecution of the appeal… The mere fact that a brief filed by an appellant did not comply with the rules made under order 6 of the Court of appeal Rules does not mean that the appellant has filed no brief…; PER CHINWE EUGENIA IYIZOBA, J.C.A.

LAND LAW: WAYS OF OWNERSHIP OF LAND

The law is well settled that there exist five methods by which ownership of land may be established. They are (1) Proof by traditional evidence; (2) Proof by production of document of title; (3) Proof by acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land; (4) proof by acts of long possession; (5) proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute. Idundun & Ors. v. Okumagbe (supra). PER CHINWE EUGENIA IYIZOBA, J.C.A.

COURT: PRIMARY FUNCTION OF THE TRIAL COURT

Findings of facts are matters peculiarly within the competence of the court of trial. The assessment, evaluation, and appraisal of evidence emanating there from and the ascription of probative value thereto are primarily that of the trial court. An appeal court can only interfere in well defined instances. See Chief Ebba v. Ogodo (1984) 1 SCNLR 372; Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267 @ 282: Bamgboye v. University of Ilorin & Anor. (1999) 10 NWLR (Pt. 622) 290. PER CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES

KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

MRS. FLORENCE KOKUMO AWOPEGBA Appellant(s)

AND

1. MR. RASAKI ADELORO
2. MR. FRANCIS OLAIYA
(SUING FOR THEMSELVES AND ON BEHALF OF THE OSULE FAMILY OF IGBARE-OKE) Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal were the plaintiffs at the Ondo State High Court Akure where as the representatives of the Osule family of Igbara-Oke they claimed against the appellant as follows:-
(a) A declaration of customary title in respect of family farmland situate and lying at Ajebamidele village in the premises of Osule family of Ajebamidele.
(b) General damages for trespass to the tune of N250,000.00
(c) Order of perpetual injunction restraining the defendant, her servants and agent or privies from further trespass on the said farmland.

The parties filed and exchanged pleadings. The appellant as defendant at the lower court filed a 29 paragraph amended Statement of defence with a counter claim denying all the claim and reliefs sought by the respondents. The counter-claim is not in respect of title. The appellant’s counter-claim reads:
“Whereof the defendant claims for the sum of Two Hundred and Fifty Thousand Naira only as general damages for the detriments already suffered in the hands of the plaintiffs and dismissal of damages for trespass and perpetual injunction as defendant cannot be a trespasser on her father’s property”
In their reply to the defence and counter-claim, the respondents denied the averments in the counter-claim and re-stated the historical antecedents of their customary title to the farmland in dispute.
The suit was tried by Bola J. who on the 30th day of June, 2009 delivered judgment in the case. The learned trial judge in his judgment responded to the claims of the parties in these words:
“In the final analysis the plaintiffs’ action succeeds. Consequently, judgment is hereby entered in favour of the plaintiffs against the defendant as follows:-
(a) Declaration of customary title in respect of family farmland
And lying at Ajebamidele village in the premises of Osule of Ajebamidele.
(b) General damages for trespass for the tune of N25,000.00 (Twenty-Five Thousand Naira).
(c) Order of perpetual injunction restraining the defendant, her servant and agents or privies from further trespass on the said family land, except the portion the defendant currently occupies for educational purposes and farming.
On the other hand, this court holds that the defendant has failed to prove her counter-claim. The claim is accordingly dismissed.”
Dissatisfied with the judgment the defendant as appellant filed a notice of appeal on 17/8/09 with two grounds of appeal, out of which she formulated two issues.
During the hearing of the appeal, A. S. Adedokun Esq. for the appellants adopted the appellants’ brief and reply brief and urged the court to uphold the appeal and set aside the judgment of the lower court including the damages awarded.
G. O. Falowo Esq. for the respondents then informed the court that the respondents’ brief of argument incorporates a preliminary objection. He adopted and relied on his brief and urged us to dismiss the appeal.
It has been said times without number that when a preliminary objection is incorporated in the brief of argument, leave of the court must be obtained to argue the preliminary objection before the appellant adopts his brief of argument. This is common sense. A preliminary objection to an appeal means that the respondent has an objection to the appeal. If there is an objection to the hearing of the appeal, it must be taken first before the appeal is heard. It is a wrong procedure for the respondent to keep mum and allow the appellant to argue his appeal, and then in the course of arguing his respondent’s brief to say that a preliminary objection is incorporated in his brief of argument. It is likened to a situation where the stable is shut after the horse had bolted out. The appeal has already been argued by the appellant. The respondent in such circumstances will be deemed to have abandoned the preliminary objection which is liable to be struck out. See Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65; Nsirim v. Nsirim (1990) 3 NWLR (Pt 138) 285; Salami v. Mohammed (2000) 6 SC (Pt 11) 37. Since the respondent herein did not seek the leave of the court to move the preliminary objection before the appellant adopted his brief of argument, he is deemed to have abandoned the preliminary objection and it is hereby struck out.

The court however has the power to act on its own motion in considering the competence or otherwise of grounds of appeal. Notwithstanding the striking out of the preliminary objection, I shall proceed to consider the competence of the grounds of appeal and the issues formulated there from.
Order 6 of the Court of Appeal Rules 2007 which was in force when the case was determined identical with Order 6 of the 2011 Rules provide:-
6 (2) (2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error in law shall be clearly stated.
6(2)(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
6(3) Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the court of its own motion or on application by the Respondent.
The first ground of appeal is at page 111 of the record of appeal. It reads:-
“That the decision is erroneous in points of law”

The Particulars of Error is a long write-up in essay form complete with argument and references to authorities covering almost three pages of her notice of appeal. As an example, I will set out just the first paragraph:-
“The trial court erred in law in not considering the settled aw that where plaintiff’s root of title is pleased (sic) as for example a grant i.e. (ROYAL PERMISSION OF THE THEN OLOWA OF IGBARAOKE) to settle and take possession of Ajebamidele in Igbara-Oke district that root of title was to be established first, before any consequential acts following therefrom can then properly qualify as acts of ownership. Where the title pleaded has not been proved as in this case, then it will be unnecessary to consider acts of possession, for the acts then become no longer acts of possession but acts of trespass. That this was not considered led to perverse dension (sic decision). Common consideration demands that settlement and possession could not have been possible without the Royal Permission of the then Olowa. REGISTERED TRUSTEES DIOCESE OF ABA v. NKUME (2002) 1 SC PAGE 28; FASORO & ANOR V. BEYIOKU & ords (sic ors) 1988 2 NWLR Pt.76 PAGE 263.”
It is not in doubt that the appellant’s ground 1 that the decision of the trial court is “erroneous in point of law” appears vague and general in term. The law is that a ground of appeal which alleges an error or misdirection in law to be a valid ground of appeal must comply with the following three conditions:-
1. Quote a passage in the judgment where the misdirection or error in law is alleged to have occurred.
2. Specify the nature of the error in law or misdirection and;
3. Give full substantial particulars of the alleged error or misdirection.
See Anadi v. Okoli (1977) S.C. 57; Anyaoke v. Adi (No.2) (1986) 3 NWLR (Pt. 31) 731; Lucas Pharm Ltd. v. Roche (Nig) Ltd. [1995] 1 NWLR (Pt. 369) 28 @ 36; Silencer & Exhaust Pipes Co v. Farah (1998) 12 NWLR (Pt.579) 624; N.N.B. PLC v. Denclag Ltd. [2005] 4 NWLR (Pt. 916) 549 @ 587 C-F.
The particulars of the alleged error in law in the judgment of the trial court were however stated though clumsily and far from succinctly. Instead of stating concisely the error committed by the trial judge in the judgment, the particulars as in the example shown above concentrated on what the learned trial judge ought to have done and arguments contrary to Order 6 (2) (3) of the Court of Appeal Rules 2007.
In the case of Ogbonnaya v. Adapalm (Nig) Ltd. [1993] 5 NWLR (Pt. 292) 147 @ 156 E-G, the Supreme Court held that there is a difference between a ground of appeal complaining of error in law and the particulars of error in support thereof; that a ground of appeal which supports an error in law is the foundation of the ground of appeal while the particulars of error are merely supportive of the ground of appeal.

Although the particulars in the ground of appeal are framed inelegantly and in contravention of laid down rules they did attempt to identify the errors in point of law in the judgment of the trial judge. Looking at the ground and particulars, the respondents cannot claim ignorance of the case they have to meet in the appellate court. The second ground of appeal is that the decision is unreasonable or cannot be supported having regard to the evidence. The particulars of this ground of appeal are again a three page long argumentative narrative of what the learned trial judge failed to do including examination of the evidence led by the witnesses at the trial and what the trial judge failed to do with the evidence. Let me again as an example set out just one paragraph of the particulars:-
(a) “The judgment is unreasonable and cannot be supported having regard to the evidence on the record of the court, the burden of proof on the plaintiffs who alleged crime as envisaged by section 138 of the Evidence Act 1990 was deliberately ignored to favour the plaintiffs as no Oyo complainants whose crops were forcibly destroyed were called as witnesses being material witnesses to the proof of crime alleged in the plaintiffs’ pleading nor crops destroyed tendered in court yet on the mere skimpy oral evidence of PW1 which was completely empty on this burden of proof defendant was held liable for criminal trespass and to pay damages of N25,000.00 on her father’s property leading to perverse decision. The liability of the defendant was based on suspicion and speculation rather than proof by evidence.”
This ground is akin to the usual omnibus ground of appeal that the judgment is against the weight of evidence. It is a proper ground of appeal in a civil case. It calls for an enquiry as to which of the two sets of evidence on an issue outweighs the other. While the facts given in the particulars by the appellant are again inelegantly drafted and also contrary to the rules as set down in the Court of Appeal Rules, the respondents cannot claim lack of understanding of the issues being canvassed.

In the case of Chief Thomas Ekpemupolo & Ors. v. Godwin Edremoda & Ors. (2009) 8 NWLR (Pt. 1142) 166; (2009) LPELR-1089 (SC), the Supreme Court held:-
“It has been stated and restated by the two Appellate Courts and held by them in a line of decided authorities, that an inelegant or bad or defective Brief need not be struck out (how much more dismissing an appeal on that ground). That the court should make the best that it can out of it. See the cases of Chinweze & 2 Ors. v. Mrs. Veronica Masi & Anor. (1989) 1 NWLR (pt. 97) 245; (1989) 1 SCNJ 148; Gbafe v. Prince Gbafe & 3 Ors. (1996) 6 NWLR (pt. 455) 417; (1996) 6 SCNJ 167 @ 178 – Per Adio, JSC, citing the case of Obiora v. Osale (1989) 1 NWLR (pt. 97) 278, @ 296, 302, 303; (1989) 1 SCNJ 213 (the last two also cited and relied on in the Appellant’s Amended Brief);… In fact in Obiora v. Osele (supra), Oputa, JSC @ 302 and 303 of the NWLR Report, stated inter alia, as follows:… ‘The aim of the whole exercise is to do justice between the parties by hearing their appeals on the merits in spite of any mistake made by counsel in the preparation and prosecution of the appeal… The mere fact that a brief filed by an appellant did not comply with the rules made under order 6 of the Court of appeal Rules does not mean that the appellant has filed no brief…;
In line with the above long line of decisions of the appellate courts, I will disregard the irregularities in the drafting of the appellant’s grounds of appeal and consider the appeal on its merits.

The appellant formulated two un-numbered issues for determination from their two grounds of appeal viz:-
“Whether it is not trite law for the plaintiffs/respondents who pleaded in their amended statement of claim their customary root of title as to grant i.e. royal permission of the then Olowa of Igbara-Oke to take possession and settle on the disputed land to first establish that root of title bearing in mind that settlement and possession could not have been possible without the grant or royal permission.”
“Whether the dismissal of the counter-claim of the defendant/appellant granting perpetual injunction against her restriction (sic) her to a small portion of the disputed farm land (when there was evidence of the plaintiffs/respondents that the land is jointly owned by the two parties in dispute and unpartitioned) and the granting of damages against the appellant were not unjust and inequitable considering the evidence before the court.”
In their brief of argument, the respondents challenged the above two issues as not arising from or related to the grounds of appeal. They further contended that having filed preliminary objection against the two issues as well as the two grounds of appeal, they were not inclined to adopt any of the two issues formulated by the appellants but would rather recast the issues by giving it a slant favourable to the respondents’ point of view but without departing from the complaint raised by the ground of appeal concerned. Consequently from the first ground of appeal, the respondents formulated the following sole issue for determination:
“Whether the respondents having pleaded customary grant as their root of title to the farmland in dispute, have discharged the legal burden on them to prove that root of title by traditional and historical evidence.”

In respect of the appellant’s second issue, counsel submitted that it is irredeemably defective for purposes of legal argument as it is neither shown to have derived from nor based on any of the two grounds contained in the notice of appeal.
With all due respect to learned counsel for the respondents, I am of the view that the appellant’s issue 1 is obviously based on ground 1 even though the appellant failed to say so. For clarity however, I will adopt the first issue as re-cast by the respondents in the determination of this appeal. As regards the second issue, contrary to the contention of the respondents, I am again of the view that it fits in conveniently under ground two. This ground is more or less the omnibus ground of the judgment being against the weight of evidence which calls into question evaluation of evidence by the trial judge. The particulars of the ground as earlier stated were clumsily drafted, inelegant and in breach of the rules. Its import is however deducible. Again for clarity, I would reframe issue two thus:
“Whether the learned trial judge was right in dismissing the appellant’s counter-claim and in granting damages and perpetual injunction restraining the appellant from further trespass on the family land when the evidence before the trial judge as adduced by the respondents is that the land is family land jointly owned by both sides and un-partitioned.”

ISSUE 1
“Whether the respondents having pleaded customary grant as their root of title to the farmland in dispute, have discharged the legal burden on them to prove that root of title by traditional and historical evidence.”
In their brief of argument, learned counsel for the appellant submitted that the root of title pleaded by the respondents was settlement with the royal permission of the then Olowa of Igbara-Oke. It was therefore incumbent on the respondents to establish that root of title with cogent and compelling evidence before the issue of possession can come into play. Counsel submitted that in order to prove the root of title claimed, it was necessary for the respondents to plead and prove the following:
1. The name of the particular Olowa of Igbara-Oke who gave the said grant or royal permission to Adefameye to take possession and settle at Ajebamidele i.e. the disputed farmland.
2. Those who witnessed the grant or permission.
3. The consideration given;
4. Whether the land granted was the personal land of the Olowa or community land of Igbara-Oke people.

Counsel submitted that these facts were not pleaded and no evidence was led on the facts. Counsel further submitted that the evidence of the three witnesses called by the respondents apart from parrotically reciting the family tree of Osule was barren as to the root of title of grant from the then Olowa. The result counsel argued was that the respondents failed to prove their root of title. Counsel relied on the case of Reqd. Trustees of Diocese of Aba v. Nkume (2002) 1 SC 28. Counsel further submitted that having failed to prove their root of title, the respondents cannot be allowed to rely on acts of possession. Omin v. Etim (2003) 6 NWLR (Pt. 817) 609: Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393 @ 431. Counsel submitted that given the failure of the respondents to prove their root of title, it was wrong of the trial judge to have shifted the burden to the appellant to prove her individual ownership of the land. Further, counsel argued, the fact that Adefameye was traced as the ancestor of the two parties does not lead to the conclusion that the appellant supported the contention that he is the founder of Ajebamidele, the disputed farmland.
In reply, learned counsel for the respondents submitted that evidence in proof of the respondents’ root of title was copiously furnished in the evidence of the three witnesses called by the respondents – PW1, PW2 and PW3. Counsel argued that even during the cross-examination of DW1, she admitted being a principal member of the Osule family and that the family’s ancestor Adefameye was the first Osule to whom according to the evidence of PW1 a grant of the farmland in dispute was given by the Olowa of Igbara-Oke some 300 years ago. Counsel submitted that the learned trial court in its consideration and evaluation of the evidence placed before it made a list of its findings and held that the evidence of the respondents in proof of their customary title to the disputed farmland satisfied the laid down tests. Counsel referred to Idundun v. Idumagbe (1979) 9-10 SC 246: Alli v. Alesinloye (2000) @ S.C.N.Q.R. 285 @ 306: Ekekwe v. Amajuonyin (2000) FWLR (Pt. 30) 2689 @ 2699.

Where evidence of tradition is relied on in proof of title to land, it is settled that the plaintiff to succeed is bound to plead and establish facts such as (1) who founded the land; (2) how he founded the land; (3) and particulars of intervening owners through whom he claims. See Akinloye v. Eyiyiola (1968) NMLR 92; Piaro v. Tenalo & Anor. (1976) 12 SC 31 @ 41: Onwugbufor v. Okoye (1996) 1 NWLR (Pt 424). The plaintiff must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See Onwugbufor vs. Okoye (1996) 1, NWLR (Pt. 424) 252: Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671; Eze v. Atasie (2000) 9 WRN 73 @ 88: Adesanya v. Aderonmu (2000) 13 WRN 104 @ 115.

In paragraphs 6 & 7 of the amended statement of claim, the respondents averred thus:
(6) “The plaintiffs aver that the Osule Family have collectively exercised customary right of ownership of the disputed farmlands for over two centuries.
(7) The plaintiffs further aver that the original founder of and settler in Ajebamidele, being the ancestor ADEFAMEYE an indigene of Igbarai-Odo, who settled at Ajebamidele with the royal permission of the then Olowa of Igbara-Oke, who confirmed him as the 1st Osule some 300 years ago.”
In his evidence in chief at page 22 of the record, PW1, the 1st respondent testified:
“The past Osule for the past 300 years and up till the incumbent have been in charge of this piece of land. They have been administered by successions of Osule. Adebemaye established or founded Ajebamidele. He came from Igbara-Odo. He was the 1st Osule. He was succeeded by Okende. Followed by Osule Arogbodo as the 3rd Osule. Samuel Olatokunbo was the 4th Osule and the father of the defendant. Theophillus Eminiwa is the 5th Osule and the incumbent…”
The defendant in her amended statement of defence and counterclaim averred and led evidence that her father Osule Samuel Olatokunbo was the first settler and founder of Ajebamidele and that no Olowa gave Ajebamidele to any Osule; that the Osule’s authority is only limited to Osule compound in Agbara-Oke. This traverse placed the burden squarely on the respondents to lead evidence in proof of the fact that their ancestor Adefameye was not only the original founder of the land but also how he founded it. Their pleading at paragraph 7 is that he settled at Ajebamidele with the royal permission of the then Olowa of Igbara-Oke. This by implication meant that the land originally belonged to Igbara-Oke or the Olowa and that acquisition by Adefameye was by grant. No evidence whatever was led by the respondents in proof of their averment as regards the grant or as to how their ancestor founded the land. The learned trial judge at page 102 of the record observed:
“I have gone through the evidence of the plaintiffs and that of the defendant. They all agree that Osule Adefameye was the first Osule; that both the plaintiffs are related and had a common progenitor in the person of Adefameye. This inclines this court to believe the evidence of the PW1-PW3 to the effect that the land in dispute that is Ajebamidele was founded by the 1st Osule Adefameye over 300 years ago.”
The fact that the parties agree as stated above does not in any way satisfy the requirement of the law that if claim to title is based on traditional history, then party claiming title must lead evidence in proof of not only who founded the land but also how it was founded. The respondents pleaded that their ancestor ADEFAMEYE an indigene of Igbara-Odo, settled at Ajebamidele with the royal permission of the then Olowa of Igbara-Oke, who confirmed him as the 1st Osule some 300 years ago. That is what they pleaded as their root of title. The appellant is consequently right that the respondent in order to succeed ought to have pleaded and called evidence to prove the name of the particular Olowa of Igbara-Oke who gave their ancestor the royal permission or grant and also the root of title of the Olowa. See Nruama v. Ebuzoeme (2006) 2WRN 133 @ 158; Akinloye v. Eyiyiola (1968) NMLR 92; Lawal v. Olufowobi (1996) 12 SCNJ 376. Contrary to what they pleaded, the respondents gave evidence of settlement by their ancestor and no more. The law is that where a party fails to prove his root of title through traditional history he cannot fall back on acts of ownership or long possession because there would be nothing on which to hinge such acts. See Owhonda v. Ekpechi (2003) 17 NWLR (Pt 849) 326; Gbadamosi v. Okege (2011) 3 NWLR (Pt.1233) 175 @ 195-196 H-B: 201 C-E. It is certainly not enough for the respondents to state that their ancestor Adefameye founded the land and that they have owned the land since then. See Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332.

The appellant did not counterclaim for title in the suit. There was consequently no burden on her to establish title. The burden of proof lay squarely on the respondents. It was therefore wrong for the learned trial judge to embark on a comparison of the evidence led by the respondent as to who founded the land and that led by the appellants and to hold based on such comparison alone that the respondents are owners. At page 103 of the record, the learned trial judge observed that “none of the witnesses of the defendant testified to the effect that Osule Olatokunbo (defendant’s father) founded Ajebamidele.”
At the same page the learned trial judge observed that “PW1 gave vivid traditional evidence of how Ajebamidele came to be through Osule Adefameye”. Also at page 105 of the record, the learned trial judge said that the plaintiffs gave traditional evidence of how Adefameye a native of Igbara-Odo was given the land by the Olowa of Igbara-Oke. There is no such evidence in the record of proceedings. I have searched carefully through the evidence of the respondents’ witnesses for the vivid traditional evidence and found none. Apart from the evidence of PW1 that Adebameye established or founded Ajebamidele, that he came from Igbara-Odo and that he was the 1st Osule, there was absolutely nothing else as to root of title. The rest of the evidence of PW1 was a litany of those who succeeded Adebameye as Osule and their genealogy. Apart from his ipsi dixit, there is no confirmatory evidence of administration of the land by the various Osules. Not one single tenant was called to confirm that he was put on the land by any of the Osules. Not one single tenant was called to confirm that benefits derivable from the land were taken to the Osule family house. Under cross-examination, PW1 said he did not know the names of any of the Oyos (tenants) on the land. Strange that he did not know even one name out of the tenants he claimed were bringing benefits from their farm to the family house for the past 40 years. The 2nd plaintiff testifying as PW2 said he did not know when Ajebamidele was established and even PW3 under cross-examination said he did not know when Igbara-Oke was established. To confound the situation the present Osule Theophillus Eminiwa who is supposed to be the person entitled to administer the land was not a party to the suit and was not called to testify. While denying under cross-examination that no judgment had been entered that proceeds of the land be given to the appellant, PW1 admitted that Eminiwa is the present Osule and that he is the 2nd plaintiff (defendant) in the document shown to him (Exhibit B, the enrolled order:). Exhibit B made by Falodun J on 20/10/97 and which was never appealed against reads:
“It is hereby ordered that the defendants shall give account of the proceeds of cocoa, kolanuts, palm products, plantain and other economic crops on the land harvested by the defendants on the land of the plaintiffs father late Chief Olatokunbo Osule, situate at Ajebamidele and Owena farms Igbara-Oke since 1981 when his father died.”
The present Osule, Theophillus Eminiwa is the 2nd defendant in the suit filed by the appellant – suit no. AK/310/94. The learned trial Judge was right that the suit could not operate as res judicata because the appellant failed to plead the defence and failed also to provide sufficient information in her pleadings to enable the court determine whether the parties’ claim and the cause of action are the same. At page 101 of the record, the learned trial judge observed that there is no doubt that the order contained in Exhibit B is a valid order made by a court of competent jurisdiction.
The existence of the court order ought to have agitated the mind of the learned trial judge and should have put him on the alert as regards the need for strict observance of the law with respect to the burden of proof on the respondents to establish their root of title in accordance with the law.
Without further ado, I am of the firm view that the learned trial judge erred in holding that the respondents discharged the burden on them to prove ownership of the land when their evidence is at variance with their pleading and fell woefully short of what is required to prove traditional history. This issue is resolved in favour of the appellant.

ISSUE 2
“Whether the learned trial judge was right in dismissing the appellant’s counter-claim and in granting damages and perpetual injunction restraining the appellant from further trespass on the family land when the evidence before the trial judge as adduced by the respondents is that the land is family land jointly owned by both sides and un-partitioned.”
On the counter-claim, the appellant had averred in her amended statement of defence and counter-claim that she had suffered a legion of arrests, detentions and malicious prosecutions without reasonable and just cause by the police instigated by the plaintiff. She counter-claimed the sum of N250,000.00 being general damages for the detriments already suffered in the hands of the plaintiffs.
At the hearing, she relied on exhibit C being the CTC of the charge sheet, and proceedings in respect of charge MGB/67C/2005 between Commissioner of Police v. Awopegba. At page 104 of the record, the learned trial judge held as follows:
“It is clear from Exhibit C that the defendant was arrested and arraigned before the Chief Magistrate Court. But this court finds it difficult to believe that the PW1 instigated her arrest or got her arrested without any just course (sic). On exhibit C the charge sheet containing the offences alleged against the defendant at the Chief Magistrate Court that (sic) is nowhere the name of the plaintiffs mentioned as complainants. The complainant on exhibit C is the farmers and tenants in Ajebamidele which the defendant was alleged to have forcibly entered their farm lands.
Consequently I find as of fact the plaintiffs did not instigate the arrest and detention of the defendant.”

In addition to her evidence, the appellant had called two other witnesses to support her case that the prosecution was instigated by the respondents. The learned trial judge weighed the evidence of these witnesses and Exhibit C and came to the conclusion that the respondents did not instigate the prosecution of the appellant. There is no basis for challenging the finding of the trial judge. There is nothing in the proceedings at the Magistrate Court to support the contention that the respondents instigated the prosecution. The evidence of DW2 and DW3 that the respondents were at the police station and in the court during the hearing with the bus load of 23 persons even if true does not amount to conclusive evidence that they instigated the arrest and prosecution. Findings of facts are matters peculiarly within the competence of the court of trial. The assessment, evaluation, and appraisal of evidence emanating there from and the ascription of probative value thereto are primarily that of the trial court. An appeal court can only interfere in well defined instances. See Chief Ebba v. Ogodo (1984) 1 SCNLR 372; Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267 @ 282: Bamgboye v. University of Ilorin & Anor. (1999) 10 NWLR (Pt. 622) 290. I find no fault with the findings of the trial judge that the respondents did not instigate the arrest, detention and prosecution of the appellant. The counter-claim of the appellant was rightly dismissed.

Learned counsel for the appellant submitted relying on the case of Fasikin v. Oluronke II (1995) 65 LRCN 11 that the respondents by claiming damages for trespass and perpetual injunction put their title in issue; and that having not established their title in line with the grant from the then Olowa of Igbara-Oke, their case ought to have been dismissed. Counsel argued that the respondents never had exclusive possession of the farmland or even any possession at all; that it was the appellant who was in possession based on her father’s ownership of the land which was never challenged when he was alive. Counsel further submitted that with the evidence of the respondents that the farmland is jointly owned by the two parties and has never been partitioned, it amounted to improper evaluation of evidence and a miscarriage of justice for the learned trial judge to have granted the respondents damages against the appellant and perpetual injunction restraining her to a small portion of the disputed land.

In their brief of argument, the respondents made no submissions on this issue as their contention is that the issue is irredeemably defective as it was not shown to have been derived from or based on any of the grounds.
I have already ruled that this issue is based on ground 2 in the appellant’s notice of appeal. At page 14 of their brief of argument, learned counsel observed:
“It now remains for this brief to proceed in terms of Order 17, Rule 4(2) of the Court of Appeal Rules, 2007 to answer material points of substance contained in the appellant’s brief even when such points are incompetent, lest such material points not answered be deemed admitted…”
Respondents’ counsel listed five points including (2) that the judgment of the trial court was perverse and (3) that the judgment of the trial court was unjust and inequitable; but curiously failed to discuss this issue under those points.
Having determined that the learned trial judge erred in holding that the respondents proved their root of title, resolution of this issue may appear unnecessary.
If the respondents failed to prove their root of title, then question of damages and injunction will not arise. But just in case I am wrong, there is need to pronounce on this second issue. Even if the learned trial judge was right in holding that the respondents proved their root of title to the farmland, was his lordship right in awarding the respondents damages and injunction against the appellant.
At page 104, of the record, His Lordship observed:
“From the totality of the evidence considered above, this court finds as fact that Adefameye, who was the 1st Osule founded Ajebamidele. It is also found as of fact that Ajebamidele is Osule family land and every Osule from Adefameye to the 4th Osule Olatokunbo Samuel had administered the land as Osule farmland and proceeds from the farmland shared amongst members of the family. It is also found as of fact that the farmland has not been partitioned amongst members of the family. As a family, the title or ownership of the said property is vested in the entire family.”

In the light of this far reaching pronouncement and in view of the admission of the respondents that the appellant is a principal member of the family, the only kind of damages and injunction the respondents could have properly asked for is damages for wrongful interference with the administration of the family land and injunction restraining the appellant from further interference with the administration of the family farmland. If there should be damages for trespass, it ought to be at the instance of the tenants in possession of the land whose farms the appellant was alleged to have raided forcibly taking away their crops. These tenants were never called to give evidence. How can the appellant be found liable in damages for trespass at the instance of the respondents when she, just like the respondents according to the case of the respondents has the right to be on the land as a member of the Osule family? How can a perpetual injunction be granted against her barring her from enjoying what rightly belongs to her as a member of the Osule family subject to the small portion allowed her? Is that the proper procedure for partitioning of family land? There is no doubt that the evaluation of the evidence by the trial judge in arriving at the conclusion that the respondents are entitled to damages and perpetual injunction against the appellant is faulty. The decision is unreasonable and cannot be supported having regard to the evidence on the record. Where a trial court failed to properly evaluate the material before it, an appellate court will in the interest of justice, set aside its decision. Ozigbe v. Aigbe (1977) 7 SC 1 @ 11: Okunzua v. Amosu & Anor. (1992) NWLR (Pt. 248) 416.
It is interesting to note that the learned trial judge knew that there was a problem with the reliefs claimed by the respondents. At page 108 of the record, his lordship observed:
“Before I conclude, this court is of the view that counsels (sic) should ensure that the reliefs claimed on the writ of summons and the statement of claim are well drafted and couched. They must be clear, unequivocal and well articulated. Reliefs and claims drafted inelegantly does (sic) not assist the court a times in capturing the essence of such claim: The plaintiff’s claim as couched on the writ of summons and statement of claim leaves much to be desired. Be that as it may the Supreme Court has decided in the case of Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) 272 @ 292 that the court should not allow technicalities defeat the cause of justice particularly in manners reliefs are concluded.”
With due respect to the learned trial judge the claims for damages for trespass and injunction against the appellant who is part owner of the land according to the respondents are beyond mere technicalities. They are clearly out of place.
In the final result, this appeal succeeds and is allowed. The Judgment of the High Court of Ondo State Akure judicial division in suit No. AK/265/2005 delivered on 30/6/2009 is set aside. The respondents’ suit in that Court is hereby dismissed. Costs are assessed at N70,000.00 in favour of the appellant against the respondents.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading before now the judgment of my learned brother, IYIZOBA, JCA just delivered. His Lordship has meticulously considered and ably resolved the issues in contention in this appeal. I agree that there is merit in this appeal and it ought to be allowed. Consequently I allow the appeal and set aside the judgment of the High Court of Ondo State, Akure Judicial Division in Suit No. AK/265/2005 delivered on 30/6/2009. I abide by the order for costs.

CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my learned brother, Iyizoba JCA, just delivered now. I agree with the reasoning and conclusion.
This contribution is limited to the respondents’ burden, both on the pleadings and evidence. In their pleading, they averred that their ancestor, one Adefaneye, an indigene of Igbara-Odo, settled at Ajebamidele with the permission of the then Olowa of Igbara-Oke. In my view, they under-pleaded the facts in issue. This is so because it is the pleading of a party that fixes the onus of proving particular facts, Kyari v. Alkali (2001) 31 W R N 93; Highgrade Maritime Services Ltd. v. First Bank (1991) 1 NWLR (pt 167) 290. This presupposes that the said pleading must, clearly, delineate the ambit of that onus. After all, parties are bound by their pleadings and evidence on un-pleaded facts goes to no issue. Thus, before considering the evidence led in proof of the averments, it was, even necessary to ascertain whether the pleading discharged the requirements long established in case law.

Thus, where reliance was placed on traditional history, as the respondents did in their pleadings, they were required to plead the root of their title; the names and histories of their ancestors, Okereke v. Nwankwo (2003) 9 NWLR (pt 826) 602; Ezeanika v. Agu (2003) 33 WRN 38; Adesanya v. Aderonu (2000) 13 WRN 104, 117; Ezeokonkwo v. Okeke (2002) 11 NWLR (pt 377) 1, 21; Omin v. Etim (2003) 6 NWLR (pt 817) 587; Irolo v. Uku (2002) 14 NWLR (pt 781) 195; Adeniran v. Ashabi (2004) 2 WRN (pt 857) 375.
They ought to have traced their title to the original owner, Adelekan v. Izeogbekum (2003) 7 NWLR (pt 819) 285. That is not all, their averments should have shown how their predecessors acquired title, Kankia v. Maigemu (2003) 6 NWLR (pt 817) 496. The custom, which recognized the founding of the land and incidents of that custom ought to have been identified, specified, and of course, proved, Onuoha v. Ndubueze (2002) 2 NLWR (pt 750) 172.
The respondents [as plaintiffs] were not only required to plead their historical connection with the land, Polo v Ojor (2003) 3 NWLR (pt 807) 344; Ogunleke v. Adedibu (2003) 18 W R N 120, 122, they were supposed to plead how the land devolved on them through any of their ancestors, Lebile v. Registered Trustees C & S (2003) 2 NWLR (pt 804) 399, 427; Osuji v. Ogualaji (2002) 16 NWLR (pt 792) 126, 145, Okarika v. Samuel (2003) 7 NWLR (pt 924) at 381. In other words, the line of succession to the plaintiffs/respondents should have been traced, Omin v. Etim (supra) 591, without leaving gaps or creating mysterious linkages, Eze v. Atasie (2000) 9 WRN 25; Sekoni v. Ogunmola (2003) 22 WRN 154, or allowing the link to breakdown, Eze v. Atasie at p. 76.
Iguh JSC in Nwadiogbu v. Nnadozie at p. 85 offered an insightful explanation for this tight and rigid rule: “It is only if the person from whom he derived his title has a valid title to such land that he may lawfully pass on such title to anyone else. If the title of the grantor is defective and non-existent, then obviously, he will have no valid title to pass to anybody; see, also, Sanyaolu v. Coker (83) 1 SC 1681.
I, therefore, agree with my Lord that it was not enough for the respondents to state that their said ancestor founded the land and that they have owned it since then. It is for these reasons, and the more detailed reasons in the leading judgment that I, too, shall allow this appeal. I abide by the consequential orders in the leading judgment.

Appearances

A. S. ADEDOKUNFor Appellant

AND

G. O. FALOWO with Y. SALAUFor Respondent