OLASUPO TIMOTHY V. JOEL FABUSUYI
(2012)LCN/5425(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of May, 2012
CA/B/95/2009
RATIO
“The first ground of appeal here “that the judgment is against the weight of evidence” is certainly not a question of law but of fact. That immediately removes the appeal from the ambit of Section 241(1)(a) and (b). It comes squarely within section 242(1) because the grounds of appeal involve facts or mixed law and facts. The appellant ought to have obtained the leave of the High court or the Court of appeal within three months of the date of the judgment before filing the appeal. Not having obtained such leave, the appeal is incompetent and this court lacks the jurisdiction to entertain the appeal. See Inyang V. Ebong (2002) 2 NWLR (Pt 751) 284 @ 322:- “Where an appeal can only be lodged with the leave of the court, it is the leave that confers jurisdiction on the court and it is very vital and fundamental that leave must be obtained before on appeal is filed and any appeal filed without leave is incompetent as no jurisdiction can be conferred on the court. Shaka v. Salisu (1996) 2 NWLR (Pt. 428) 28; Mosuro & Anor v. Akinyele 13 WACA 112 – 113; Yakubu v. The Governor of Kogi State & 4 Ors (1995) 3 NWLR (Pt. 383) 367.” Per IYIZOBA, J.C.A.
PRACTICE AND PROCEDURE: PROCEDURE OF TRIAL AT CUSTOMARY COURT: DUTY ON APPELLATE COURT WHEN FACED WITH APPEAL FROM TRIAL COURT
“The transactions evidenced by the documents were made under native law and custom which does not require registration of the documents. Further the documents are admissible as evidence of payment of purchase price for the land. Even exhibit A tendered by the appellant is an unregistered document of the same nature as those tendered by the respondent. See Erhunmunse v. Ehamire (2003) 13 NWLR (Pt. 837) 353 @ 377 E – G:- “Customary Courts are not superior courts of record. No pleadings are filed in them either. Accordingly, the technical rules and/or procedure which govern the trial of actions in the superior courts of record are not stringently applied in those Courts. The only material before the Customary Courts is the plaintiff’s claim which is the initiating process in all civil suits filed in those courts. Trials are conducted in the Customary Courts in a summary manner and the only opportunity a defendant has to project his case is by oral evidence when he and his witnesses testify before the court in his own defence.” Per IYIZOBA, J.C.A.
“… the appellant herein was the plaintiff in the trial customary court where this suit was initiated. In that court he asked for declaration of title to the land in dispute. The onus lies squarely on him to prove his title to the disputed land and he must succeed on the strength of his own case and not on the weakness of the defence. See Mogaji v. Cadbury Nig Ltd. (1985) 2 NWLR (Pt. 7) 393 @ 429 D-E; Kodilinye v. Odu (1936) 2 WACA 336 @ 337; Onwugbufor v. Okove (1996) 1 NWLR (Pt. 424) 252; Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671.” Per IYIZOBA, J.C.A.
“In the case of Broadline Enterprises Ltd V. Monterey Maritime Corporation & Anor (1995) 9 NWLR (Pt.417) 1 @ 27 Igu J.S.C. said:- ‘I think the first point must be made for a better appreciation of their resolution that where evidence given by parties to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established.” Per IYIZOBA, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OLASUPO TIMOTHY Appellant(s)
AND
JOEL FABUSUYI Respondent(s)
CHINWE E. IYIZOBA J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ondo State High Court of Justice sitting in its appellate jurisdiction at Ondo Judicial division in suit No HOD/5A/2008 delivered by Kolawole J. on the 4th day of March,2009.
The facts that gave rise to this suit are as follows: The plaintiff’s case is that he bought the parcel of land in dispute from the family of Jomu-Doko Akinnawo of Ondo in 1997. The agreement of sale/purchase receipt Exhibit A was executed by Chief Joseph Akinbinu Akinnawo, PW1 and the head of Late Jomu-Doko Akinnawo family of Ondo for himself and on behalf of the family. The plaintiff took possession of the land by erecting 11 pillars, 6 feet each to demarcate the portion of land purchased. Two weeks after the erection of the pillars, the defendant went to the land and destroyed the pillars. The plaintiff claimed that efforts by Chief Joseph Akinbinu Akinnawo to ascertain the reasons for the defendant’s action yielded no fruit and so he headed to the customary court of Ondo State where by a summons dated 5/8/05 he claimed as follows:-
1. A Declaration that the plaintiff is the person entitled to the grant of statutory customary right of occupancy over that piece or parcel of farmland situate, lying and being at Onigbo Area off Ondo-Ife Road, Ondo.
2. N250,000.00 (Two hundred and fifty thousand naira) only being damages for trespass committed on the farmland by the defendant.
3. An order of perpetual injunction restraining the defendant, his agents, privies, servants or anyone whosoever claims through the defendant from further trespass on the farmland.
The defendant’s case on the other hand is that part of the land PW1 allegedly sold to the plaintiff had been sold to him by the same Jomu-Doko Akinnawo family sometime in 1969 and 1970, with PW1 being a party to the sale of 1969, exhibit C while his siblings were the signatories to the document of sale made in 1970, exhibit C1 which PW1 later got to know about and raised no objection to. The defendant claimed that the remaining portion of land owned by him which was part of the land sold to the plaintiff by PW1 was bought by him from the Akintade family of Epe; exhibits B, B1, and B2. The defendant claimed that all the parcels of land bought from Jomu-Doko Akinnawo family and the Akintade family are contiguous. At the hearing, PW1 gave evidence for the plaintiff while the defendant gave evidence on his own behalf. At the conclusion of hearing the customary court entered judgment for the plaintiff in terms of his claims 1 & 3. Even though it found the defendant liable in trespass, it failed to award damages to the plaintiff. The defendant being dissatisfied with the judgment appealed to the High court. The plaintiff was also dissatisfied with the failure of the trial customary court to award him damages for trespass. He filed a cross-appeal. The appellate High Court in its judgment dismissed the plaintiff/respondent’s cross-appeal and allowed the defendant/appellant’s appeal. The plaintiff/respondent being dissatisfied with the judgment of the appellate High Court has now appealed to this court. In his amended notice of appeal, the appellant set out eight grounds of appeal. The parties duly exchanged briefs of argument in compliance with the rules of this court. The respondent had given notice of preliminary objection which he duly argued in his brief.
The appellant out of his 8 grounds of appeal formulated four issues for determination as follows:-
1. Whether the lower court was right when it read into the record, evidence and materials not on the printed record placed before it. (Ground 3)
2. Whether in the circumstances of this case and evidence adduced at trial, the lower court was right when it allowed the respondent’s appeal and dismissed the reliefs already granted to the appellant by the trial customary court. (grounds 2, 4, 5 & 6)
3. Whether appellant cannot recover in damages for trespass against the respondent so as to justify the dismissal of the appellant’s cross-appeal by the lower court. (Ground 7)
4. Whether the lower court properly appraised the evidence placed before it. (Ground 8)
The respondent also formulated four issues for determination:-
1. Whether from the circumstances of this case the lower court could be said to have had a proper understanding of the issues in dispute between the parties and did a proper appraisal of the evidence led and therefore came to a right conclusion on the matter in controversy. (Grounds 3 & 8)
2. Whether the provisions of the Evidence Act, Land Instrument, Registration Law Cap 54 Laws of Ondo State and Rules of Practice and Procedure of trials at the High Court where pleadings are filed are applicable to trial at the Customary Courts. (Grounds 2 & 6)
3. Whether the land in Exhibit C does not form part of the land in Exhibit A and if it does can PW1 deal in any manner whatsoever with the land having participated in the sale of it in 1969. (Ground 3)
4. Whether from the circumstances of this case and the recitals in Exhibit C1 the lower court was not right to have held that the land in Exhibit C1 was a joint property of PW1 and his siblings and PW1 having failed to apply to take steps to set aside the sale of the land by his siblings to the respondent but that he rather ratified the sale cannot turn around to solely sell the land. (Grounds 4, 5 & 6).
I have considered carefully the issues formulated by both sides. I am of the view that all the issues can be considered and effectively dealt with under the respondent’s issue no 1. I shall therefore adopt that sole issue in the determination of this appeal. It reads:-
Whether from the circumstances of this case the lower court could be said to have had a proper understanding of the issues in dispute between the parties and did a proper appraisal of the evidence led and therefore came to a right conclusion on the matter in controversy.
Before going into the arguments of counsel, let me take first the preliminary objection raised by the respondent.
THE PRELIMINARY OBJECTION
The contention of learned Counsel for the respondent is that this is an appeal from the decision of the High Court of Ondo State sitting at Ondo in its appellate jurisdiction and not as a court of first instance. Referring to the provision of Sections 241(1)(a) and 242(1) of the Constitution of the Federal Republic of Nigeria 1999, Counsel submitted that the appellant ought to have obtained the leave of the High court or this Court before filing his appeal. Counsel argued that the appellant having failed to obtain the requisite leave from either of the Courts within three months from the date of the judgment as required by section 24 of the Court of Appeal Act, the appeal is incompetent and liable to be dismissed or struck out. Learned counsel relied on the case of Inyang & Ors v. Ebong (2001) WRN 138 @ 158.
Learned counsel for the appellant in his reply brief submitted that the objection is misconceived. Counsel submitted that other subsections of Section 241(1) of the Constitution give right of appeal as of right. He further submitted that Section 241(1)(b) gives a right of appeal as of right where the ground of appeal involves questions of law alone. Counsel referred to 7UP Bottling Company Plc v. Abiola Bottling Company (2001) F.W.L.R. (Pt. 59) 1216 @ 1231: Abubakar v. Yar’Adua (2008) 36 NSCOR 231 @ 339. Counsel submitted that grounds 2 – 7 of the appeal with their particulars are grounds of law alone and can sustain the notice of appeal as valid. Dairo V. Union Bank (2007) 31 NSCQR 475 @ 505. Counsel urged us to discountenance the preliminary objection and assume jurisdiction in the case.
Section 241(1) of the 1999 Constitution provides:-
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil proceedings before the Federal High court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;”
Section 242(1) of the constitution provides:-
“Subject to the provisions of section 241 of this Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that of the High Court or the Court of appeal.”
Sections 220(1) (a) and (b), 221(1) of the Constitution of the Federal Republic of Nigeria 1979 equivalent provisions to the above 1999 provisions were interpreted by the Supreme Court in the case of Aqua Limited V. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 @ 639 – 640 H -F per Wali JSC:-
“Section 220(1)(a) and (b) of the Constitution provides as follows:-
220 -(1) an appeal shall lie from the decisions of a High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance;
(b) Where the grounds of appeal involves question of law alone, decision in any civil or criminal proceedings. ”
Under (a) supra, all that is required before a person exercises the right conferred by that sub-section is that the decision being appealed against, is a final decision of a High Court sitting as a court of first instance. The appellant has already conceded to this. It does not matter whether the ground involves law, facts or mixed law and facts.
As regards Section 220(1)(b) supra, it has been provided to carter for appeals against
(i) The decision of a High Court in non-final decision involving questions of law alone; and
(ii) Decisions given by a High Court when not sitting as a court of first instance, that is on appeals coming before it from subordinate courts, otherwise coined as “double appeals”
In other words, it caters for appeals in interlocutory decisions and decisions in double appeals involving pure questions of law only.
From the above, it becomes clear that subsections (1) (a) and (b) are provided to cater for two different situations. They are disjunctive.
The next section that came into focus in the arguments of learned counsel; is section 221(1) It states thus-
“221(1) Subject to the provisions of section 220 of this Constitution an appeal shall lie from the decision of a High court to the court of Appeal with leave of the High Court or the Court of Appeal.”
The Section carters for situations other than those covered by section 220(1) of the Constitution. To be more explicit, it is meant to cover –
(i) Appeals in interlocutory decisions of the High court involving facts or mixed law and facts; and
(ii) Appeals in final decisions of the High court in “double appeals” involving facts or mixed law and facts.
In any of the two situations mentioned supra, a person wishing to appeal must first obtain leave of the High Court or the Court of Appeal. It is a condition precedent to the validity of such appeal”(underlining mine).
From the above provisions of the Constitution, it is clear that an appeal will lie as of right from the High Court to the court of appeal not only in respect of final decisions in civil proceedings when the court is sitting as a court of first instance but also where the ground of appeal involves questions of law alone in any proceedings whether civil or criminal. This includes where the court sat as an appellate court or as it was described by the Supreme Court, cases of “double appeals.” The only caveat is that the appeal must involve questions of LAW ALONE. See 7Up Bottling Co Plc V. Abiola & Sons Bottling Ltd (Supra) or (2002) 2 NWLR (Pt. 750) 40 @ 58 – 59 H-C.
The first ground of appeal here “that the judgment is against the weight of evidence” is certainly not a question of law but of fact. That immediately removes the appeal from the ambit of Section 241(1)(a) and (b). It comes squarely within section 242(1) because the grounds of appeal involve facts or mixed law and facts. The appellant ought to have obtained the leave of the High court or the Court of appeal within three months of the date of the judgment before filing the appeal. Not having obtained such leave, the appeal is incompetent and this court lacks the jurisdiction to entertain the appeal. See Inyang V. Ebong (2002) 2 NWLR (Pt 751) 284 @ 322:-
“Where an appeal can only be lodged with the leave of the court, it is the leave that confers jurisdiction on the court and it is very vital and fundamental that leave must be obtained before on appeal is filed and any appeal filed without leave is incompetent as no jurisdiction can be conferred on the court. Shaka v. Salisu (1996) 2 NWLR (Pt. 428) 28; Mosuro & Anor v. Akinyele 13 WACA 112 – 113; Yakubu v. The Governor of Kogi State & 4 Ors (1995) 3 NWLR (Pt. 383) 367.”
The preliminary objection therefore succeeds. I hold that the appeal is incompetent. But since this is not the final court, I am of the view that it is prudent to determine the appeal on its merits.
THE APPEAL
The sole issue for determination in the appeal is:
“Whether from the circumstances of this case the lower court could be said to have had a proper understanding of the issues in dispute between the parties and did a proper appraisal of the evidence led and therefore came to a right conclusion on the matter in controversy.”
APPELLANT’S SUBMISSIONS & ARGUMENTS
The contention of learned counsel for the appellant from a community reading and assessment of his submissions and arguments in his brief is that the lower appellate court did not understand the issues in dispute between the parties and therefore failed to do a proper appraisal of the evidence led and consequently came to a wrong conclusion in entering judgment for the respondent and in throwing out his cross-appeal. The view of learned counsel for the appellant is that the land in dispute was properly sold to the appellant by his sole witness PW1, the Dawodu of the land-owning family; that PW1 gave evidence of the boundaries of the land he sold to the appellant and stated in evidence emphatically that it was the land allegedly purchased by the respondent from his sisters that he sold to the appellant. Counsel argued that the respondent who was present in court did not controvert the evidence of boundary as given by PW1 nor did he adduce evidence of a different boundary. Rather his case was that the land in dispute comprises his land as evidenced by purchase agreements exhibits B, B1, B2, C and C1. Counsel submitted that no evidence of the boundaries of the land comprised in the exhibits was led at the trial. The learned judge of the appellate High Court was therefore wrong in resorting to evidence of boundary as contained in those exhibits. Counsel contended that the learned judge read into the record evidence and materials not reflected in the printed record. He gave as examples, the lower court’s interpretation of the evidence led by the respondent as regards occupation of the land in exhibit C by Akinnibosun’s children. Counsel submitted that the evidence of the respondent at the customary court was that he left the land in exhibit C to Akinnibosun’s children because of their father’s cocoa trees on the land. For that reason, the customary court did not take the land in exhibit C into reckoning. But the lower appellate court’s interpretation of the evidence was that only part of the land where Akinnibosun’s children had cocoa trees was left for them by the respondent and not the entire land in Exhibit C. Another example counsel submitted is the lower court’s conclusion that the customary court and counsel to respondent (in the lower court) conceded that the land in Exhibits C and C1 are covered by exhibit A. Counsel argued that there was nothing in the records to support such conclusion. Counsel relying on several authorities including Niger Bottling Co Plc V. Oboh (2000) F.W.L.R. (Pt. 29) 2379 @ 2392 submitted that reading into the record what is not contained in the printed record by the learned judge of the lower court amounts to the judge supplying evidence and has occasioned a miscarriage of justice.
Learned counsel also contended that the appellant bought the land in dispute from PW1, Chief Joseph Akinbinu Akinnawo, the first male child of late Chief Jomu-Doko James Akinnawo the founder of the family. PW1 testified that he sold the land to the appellant as the Dawodu of Chief Jomu-Doko Akinnawo in a representative capacity on behalf of the family and that the evidence was not controverted. Counsel contended that there was no reason for the lower court’s holding that PW1 was under a misguided opinion that he was the “Daud Okunrin”. Counsel further argued that the respondent led no evidence in support of his contention that exhibits B, B1 and B2 comprising of parcels of land he allegedly bought from Epe people was actually part of the land in dispute and that he also failed to establish the title of the Epe people from whom he claimed to have bought the land. Counsel argued that it was wrong for the lower court to have ignored the lacuna in the respondent’s case in arriving at its decision that the land in dispute encompasses the parcels of land in exhibits B, B1 and B2 and that the respondent acquired title to those parcels of land by purchase from Epe people. Learned counsel submitted that the respondent had tendered exhibits C and C1 as evidence of his title to parcels of land he allegedly bought from Akinnawo family which is part of the land in dispute. Counsel contended that the evidence of the respondent was that PW1 signed one of the purchase agreements and did not sign the other. Counsel contended that throughout his evidence in court, PW1 did not admit the sale contained in Exhibit C which he was alleged to have signed. Counsel argued that the respondent failed to cross-examine PW1 as to his claim that he signed the purchase agreement exhibit C, notwithstanding that he had the document there in court with him. Counsel further contended that the respondent did not adduce any evidence on exhibit C and did not call any of the signatories to exhibit C as a witness. Counsel submitted that the failure to prove due execution of exhibit C robbed the document of any evidential value and rendered it unreliable. It was thus unnecessary for the appellant to cross-examine on it. Counsel then contended that there was no basis for the lower court’s holding that PW1 actually executed exhibit C by which they sold the land covered in it to the respondent herein in 1969. Counsel further submitted that the alterations in the face of exhibit C such as the cancellation of the names of the two purported vendors vitiated the document. Counsel argued that assuming without conceding that PW1 actually executed exhibit C, the fact that two of the vendors refused to execute exhibit C robbed the document of legal validity. He relied on the case of Olowofoyeku v. AG Oyo State & Ors (1996) 12 S.C.N.J. 347 @ 362-363. In respect of exhibit C1, counsel submitted that the alleged sale of the land covered by exhibit C1 by the siblings of PW1 without the consent of PW1, the established head of late Chief Jomu-Doko Akinnawo family is void ab initio and consequently null and void. Counsel submitted that the learned judge of appellate High Court was in grave error when he held that the sale by three out of the five beneficiaries in the land cannot be void because they owned the land jointly and that at best it could be voidable at the instance of the two that did not participate. Counsel again submitted that the transactions in exhibits B, B1, B2, C, and C1 are transactions under customary law and therefore can only be proved by oral evidence as writing is unknown to customary law. Counsel submitted that the respondent failed to adduce any evidence on the essentials of valid sale of land under customary law. Counsel submitted that Exhibits B, B1, B2, C and C1 are unregistered registrable instruments and are therefore inadmissible in proof of title to land. Counsel further submitted that they offend Section 16 of the Land Instrument Registration Law, Cap 54 Laws of Ondo State 1978 and will consequently serve no useful purpose in the resolution of the dispute in this case.
Learned Counsel submitted that the appellant having proved a better title than the respondent, the learned judge of the lower court was wrong in failing to uphold his cross-appeal. Counsel contended that the appellant ought to have been awarded damages for trespass by the lower court when there was evidence on record before the court in support of trespass and the trial customary court actually found the respondent liable in trespass but waived the award of damages.
Learned Counsel for all the above reasons urged the court to allow the appeal, set aside the judgment of the appellate High Court, restore the reliefs already granted to the appellant by the trial customary court and award the appellant damages for trespass committed by the respondent on the land.
RESPONDENTS SUBMISSIONS & ARGUMENTS
Learned counsel for the respondent in his brief of argument submitted that contrary to the contention of the appellant that the lower appellate court read into the record evidence and material not in the record, the court had a clear understanding and appreciation of the facts of the case devoid of any extraneous matters. Counsel submitted that the findings of the appellate High Court that the land in dispute as contended by the respondent herein covered Exhibits C, C1, B, B1 and B2 cannot be faulted because in coming to that conclusion the court considered the following:
1. The fact that the land covered in Exhibits B, B1 and B2 share boundaries
2. The fact that the land covered by Exhibits C and C1 abuts the land in Exhibits B1 and B2
3. The fact that the land in dispute as conceded by the appellant hereinto be about 69 acres i.e. about 350 plots of 100ft X 60ft each which is by far larger than the total area of land covered by Exhibits C and C1.
Learned Counsel submitted that even if without conceding, the appellant’s contention that the land in Exhibits B, B1, B2 and C do not form part of the land in dispute Exhibit A, and accepting the evidence of PW1 that the land he sold to the appellant is the land the respondent bought from his sisters, Exhibit C1, the pertinent question then would be: is the land in exhibit A the same as the land in exhibit C1 both in description and dimension? Counsel submitted that a comparison of the two will reveal that they are not the same. Counsel submitted that the contention of the appellant that the land in dispute i.e. exhibit A is the same as the one in exhibit C1 is wrong and merely an attempt to confuse issues.
Counsel submitted that the contention of the appellant suggesting that the respondent has conceded the entire land in exhibit C to Akinnibosun has no basis in view of the clear, emphatic and unambiguous evidence of the respondent that it is only that part of the land in Exhibit C on which their cocoa trees were that was left for them and not the entire land. Counsel submitted that the appellate High court reviewed the judgment of the trial customary court and gave that piece of evidence the correct meaning and interpretation.
Counsel further submitted that the position or status of PW1 in his family is not in issue in the case but that what is in issue is whether the land in exhibits C and C1 having been sold earlier to the respondent by the family of PW1 with PW1 in active participation of the sale of the land in exhibit C, PW1 can turn round to sell the same land to the appellant. After thorough examination of the evidence of the parties and the submission of counsel, the lower appellate court resolved the matter against the appellant. Counsel submitted that the finding and conclusion of his Lordship of the appellate High court accords with common sense and is in consonance with law and equity. A party who has divested himself of interest in land has nothing left to pass or alienate in that land on the principle of nemo dat quod non habet. Counsel referred to the cases of Emy J Bila Auta v. Chief Willy Ibe (2003) 110 LRCN 1602 @ 1621: Emmanuel Ilona v. Sunday Idakwo & Anor (2003) 112 LRCN 1230 @ 2351-2353.
Counsel referred to how the sale of the land in exhibit C1 was declared void by the customary court because the document was not signed by PW1 as the Daud Okunrin or head of the family, and submitted that the learned judge of the appellate High Court was right in his view that the first mistake of the customary court was the belief that the Daud Okunrin or head of the family must sign the purchase document before it can be valid. Counsel submitted that the lower court was right that all that was necessary was for the head of the family to concur to the sale and that he need not actually sign the purchase agreement. Ekpendu v. Erika (1959) 4 FSC 79.
On whether the respondent proved his title to the parcels of land in exhibits B, B1, B2, C and C1, Counsel submitted that having produced the title documents, the respondent had satisfied one of the conditions for proving title. He further submitted that the case was not based on evidence of traditional history as to warrant the respondent going into how Lisa Akintade, his vendor acquired title to the land. The evidence of his proof of title to the parcels of land is based on:
(a) Document of purchase
(b) Long possession and
(c) Acts of ownership over a long and sufficient period of time.
On the argument of the appellant on due execution of exhibit C, counsel submitted that Section 100 of the Evidence Act on proof of signature is inapplicable to the facts of the case. Abiodun Adelaja v. Olatunde Fanoiki & Anor (1990) 2 NWLR (Pt. 131) 137 @ 167. Counsel submitted that PW1 did not deny the execution of exhibit C and so did not put its execution in issue. Further counsel submitted that a comparison of Exhibit A with Exhibit C shows clearly that the same person PW1 signed the two documents. Counsel urged us to exercise our powers to compare the two signatures in line with Section 108(1) of the Evidence Act.
On the issue of the alterations in exhibit C vitiating the document, learned counsel submitted that the appellant’s vendor PW1 who executed the document cannot turn round to take advantage of the alterations particularly when the reasons for the alterations were duly explained in the recitals. On the three issues of proof of due execution of exhibit C by PW1, failure to confront PW1 with exhibit C and non-compliance with Section 16 of the Land Instrument Registration Law Cap 54 Laws of Ondo State 1978, counsel submitted that in the customary court, rules of pleadings and the application of the provisions of the Evidence Act do not apply. He relied on the cases of Joel Okolie v Daniel Onyejuluwa (2001) FWLR (Pt.41) 1826 @ 1844 A-B; Odofin v Oni (2001) FWLR (Pt 36) 807: Patrick Erhunmunse v John Ehanire (2003) 110 LRCN 1786 @ 1803; Emavisorhe Etajata & Ors v Peter Ologbo & Ors (2008) Vol. 159 LRCN 120 @ 165.
On the nature of the holding of the family land of PW1 and his siblings after the death of their father, counsel referred to the evidence in chief of PW1 that their father lived a monogamous life with 5 children surviving him and submitted that the implication is that the properties were jointly inherited by PW1 and other members of his family who sold to the respondent the land in exhibit C1. Such joint inheritance/ownership was fully spelt out in the recitals in exhibit C1. Counsel thus submitted that the contention of the appellant that the sale by the siblings without PW1 as a signatory rendered the sale void ab initio is untenable. Counsel submitted that execution of sale agreement is not a sine qua non of a valid sale under customary law. What is important is whether PW1 was aware of the sale by his siblings. Counsel submitted that PW1 was fully aware of the sale and did not do anything to set aside the sale or prevent the respondent from exercising further acts of ownership and possession over the land. Having led the respondent to believe in his concurrence to the sale of the land to him by his siblings, PW1 cannot turn round to sell the same land to the appellant. He is stopped by his conduct from so doing… See Abalogun V. Shell BP (2003) 111 LRCN 1807 @ 1829; Joseph O. Oyeyemi v Commissioner for Local Govt & Ors (1991- 1992) All NLR 479 @ 489.
On all of the above grounds, counsel urged us to dismiss the appeal and affirm the judgment of the lower appellate court.
RESOLUTION OF THE ISSUE
First and foremost, I need to emphasize two points: One, the appellant herein was the plaintiff in the trial customary court where this suit was initiated. In that court he asked for declaration of title to the land in dispute. The onus lies squarely on him to prove his title to the disputed land and he must succeed on the strength of his own case and not on the weakness of the defence. See Mogaji v. Cadbury Nig Ltd. (1985) 2 NWLR (Pt. 7) 393 @ 429 D-E: Kodilinye v. Odu (1936) 2 WACA 336 @ 337; Onwugbufor v. Okove (1996) 1 NWLR (Pt. 424) 252: Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671. The respondent not having made a counterclaim for title bears no burden of establishing his title to the land. Secondly, trials in customary courts are conducted summarily. Pleadings are not filed and so strict rules of Procedure and Evidence do not apply. In dealing with proceedings from customary courts, an appellate court must not be unduly strict or rigid with regard to matters of form or procedure as the whole object of trials in customary courts is that the real dispute between the parties should be adjudicated upon. See Erhumwunse v Ehanire (supra) (2003) 13 NWLR (PT. 837) 353 @ 377 – 378 E-C. With this well established principle of law, I shall now proceed to consider the main issue for determination.
In its judgment, the lower appellate High court carefully took into consideration the principle of law that in dealing with the judgment of a customary court, the appellate court should only be concerned with the substance of the judgment rather than its form. To this extent I am of the view that the contention of the appellant that the lower court did not understand the issues in dispute between the parties is unfounded. The lower court correctly stated that the position of the respondent throughout the trial at the customary court was that the land sold to the appellant by PW1 is the land he bought from PW1’s Akinnawo family and the Epe people. In proof of this the respondent tendered and relied on Exhibits B, B1, B2, C and C1. The appellant’s contention is that the respondent at the trial did not lead evidence of the boundaries of the land comprised in the exhibits. It was also contended for the appellant that PW1 at the trial gave evidence of the boundaries of the land he sold to the appellant and that the respondent did not cross-examine PW1 on the evidence. In short, the appellant’s contention is that the respondent did not proffer proof that the land sold to the appellant as shown in exhibit A is the same as the land in exhibits B, B1, B2, C and C1 which the respondent claimed to have bought from the Akinnawo and Epe families. At page 15 of the record of appeal PW1 testified thus:
“My father farmed on the land gave part of the land to customary tenants including the Defendant in this case who paid him, in return Isakole tribute. The Defendant was paying ten tubers of yam as Isakole …………… After the death of my father the Defendant who was a tenant of my father kept on farming on the land. In 1996 the Defendant came to me to inform me that he had bought two plots out of the land in dispute from my sisters. I thereafter instructed him to measure out the two plots and come back to me. I would inspect the plots and later endorse the purchase with my signature. The two plots were part of the land he was farming. Since that 1996, the defendant had not measured out for my endorsement the two plots purportedly purchased by him. In the middle of our family land, there is a big rock. It is beside the rock that the defendant is farming. When in fact the defendant did not come back to me after reminding him of earlier instruction, I had to sell the land to Mr. Timothy Olasupo.” (Underlining mine for emphasis).
From the evidence of PW1 set out above, it is clear that the land PW1 sold to the appellant was the land in the possession of the respondent. PW1 said so himself. The evidence of PW1 above was that the respondent was one of the customary tenants put on the land by his father and who continued in possession after his father’s death. PW1 further testified that in the middle of their family land, there is a big rock and that it is beside the rock that the defendant is farming. The land was clearly known to the parties. The evidence of PW1 further confirms that the respondent was indeed in actual possession of the land when PW1 sold the land to the appellant. That apart, the respondent in his evidence at the trial customary court denied ever being a tenant on the land. He claimed he bought two parcels and not two plots of land from the family at two different occasions. The first parcel of land from the Akinnawo family was bought in 1969 – exhibit C measuring 550 feet. PW1 signed the purchase receipt along with some of his siblings. The second parcel was bought in 1971 measuring 1300 ft x 2000 ft exhibit C1. The purchase receipt was signed by the siblings of PW1. PW1 did not join in the execution of the receipt because he was not around then. He later was made aware of the purchase and raised no objection. The two parcels are contiguous to each other. The respondent further testified that he bought three separate parcels of land from the Epe family, all in a continuous stretch with the ones bought from the Epe family evidenced by purchase receipts B, B1, and B2. The respondent testified that before the institution of this suit by the appellant, PW1 had come to him to show him the boundaries of land bought by him claiming that the person on his right did not buy from the family and that they wanted to do a demarcation of the respondent’s land from the one on his right. The respondent showed him the boundaries of his land including those bought from Epe family as they are contiguous. PW1 apparently turned round to use the same boundaries which the respondent showed him in selling the land to the appellant. As rightly found by the learned judge of the lower court not one single question was put to the respondent in cross-examination to discredit him on these very vital pieces of evidence. It is therefore not surprising that the lower appellate High court found that the land in dispute sold by PW1 to the appellant and evidenced by Exhibit A is same as the land covered by Exhibits C, C1, B, B1 and B2 which the respondent bought from the two families of Akinnawo and Epe. The lower appellate court had observed at page 109 of the record thus: –
“There is no doubt that the court conceded that the lands covered by Exhibits C and C1 are covered by Exhibit A. This was conceded by learned counsel for the respondent. The lower court did not make a definite finding as to whether the lands covered by Exhibits B, B1 and B2 are also included in Exhibit A. There is evidence that the land covered by Exhibits B, B1 and B2 are contiguous. The land covered by Exhibit B has boundary with Lisa Akintade and the land covered by Exhibit B2 also have boundary with Lisa Akintade. The land covered by Exhibit B1 has boundary with Chief Sawe land which is also the case with land covered by Exhibit B. Above all, it is clear that the land of the appellant abuts the land covered by Exhibits B1 and B2 as the documents showed that the land of the appellant has boundaries on two sides of the four boundaries in the two Exhibits. The implication of this is that the contention of the appellant that the land in Exhibit A incorporated the land in Exhibits B, B1 and B2 is correct. At any rate,
PW1 conceded in his evidence that the land in dispute which the defendant is claiming and on which this suit has been instituted is about 69 acres about 350 plots of 100×60 plot.
The contention of the appellant that the respondent did not give evidence of the boundaries of the parcels of land in the exhibits tendered and that the lower court by resorting to evidence of boundary as contained in those exhibits read into the records evidence and materials not reflected in the printed records is with due respect misconceived. By tendering the exhibits, their contents became part of the record. The exhibits were tendered without objection by counsel for the appellant. No questions were put to the respondent in cross-examination on them. It is necessary to again restate that the proceedings were before a customary court where rules of procedure are not strictly adhered to. The lower court was entitled to look at and make use of the description of boundaries in the exhibits for a just determination of the dispute between the parties, the exhibits having been admitted into evidence. At any rate, even without the description of the boundaries as contained in the exhibits, there was sufficient description of the land by PW1 and the respondent to confirm that the land in dispute is the same as the land in the exhibits tendered by the respondent. The fact that Exhibits C and C1 form part of Exhibit A is supported by the evidence of the respondent that Akinyode was one of his boundary men with whom at a point he had a dispute which was settled by his vendors. Exhibit A has Akinyode as the boundary man. The rock which PW1 admitted is on the land on which the respondent was farming is indicated on Exhibit C as a boundary feature. PW1 in his evidence confirmed the possessory right of the respondent on the basis of alleged tenancy from his father to a large expanse of land he clearly identified which he said included the two plots he alleged was sold to the respondent by his siblings. By implication, that is concession by PW1 that the respondent was in possession of land larger than what was sold to him by PW1’s family. The size of the land in Exhibit A as admitted by PW1 is clearly not the same as the land in exhibits C and C1. All these are in the record of proceedings in the customary court. It is therefore not collect as argued by learned counsel for the appellant that the lower court read into the record evidence and materials not reflected in the printed record.
The lower court was right in its interpretation of the evidence of the respondent as to the area of land left to the children of Akinnibosun. The respondent in cross-examination testified:
“One Akinnibosun was farming on the land whose boundaries are described in Exhibit C. He admitted that the land belongs to Jomu Akinnawo. I am not aware that Akinnibosun bought the land from Jomu Akinnawo. He admitted that Akinnibosun’s coco trees are still on the land contained in exhibit C. I have left to Akinnibosun’s children the land which contains Akinnibosun’s cocoa trees.”
It is wrong to interpret the above evidence as meaning that the respondent left the entire land covered by exhibit C to Akinnibosun’s children. What was left for the children was obviously the land out of exhibit C which contains Akinnibosun’s cocoa trees. If the respondent had left to the children of Akinnibosun the entire land covered by exhibit C, he would not be claiming ownership of the land. As urged on us by counsel for the respondent I agree with the position of the lower court that even if the entire land in exhibit C was in the possession of Akinnibosun’s children, PW1 had no legal or moral right to sell the land to the appellant. The truth of the matter as far as exhibit C is concerned is that PW1 signed the sale agreement and purchase receipt. He cannot therefore sell to the appellant what he has already sold to the respondent. The sale was in 1969 and the respondent has been in possession of the land since then. That is why the trial customary court was quick to exclude exhibit C in his judgment on the basis that the respondent had vacated the farm land and left it for the use of Akinnibosun’s children.
The appellate lower court rejected, rightly in my view, the contention of the appellant, as upheld by the customary court that PW1 had the right to sell the land in exhibit C1 as the Daud Okunrin or head of the family because he did not sign the purchase agreement by which his sisters sold the property to the respondent. I agree with the lower court that what is important is that the head of family should concur to the sale and not that he must sign the document of sale. It is not in dispute that where family land is sold without the consent or concurrence of the head of family the sale is void. See Adejumo & Ors. v. Ayantegbe (1989) 3 NWLR (Pt. 110). Ekpendu v. Erika (1959) 4 FSC 79. But in this case, the lower court held that the trial customary court fell into error in not recognizing that PW1’s family is a monogamous one and that the rule respecting such monogamous family property is different. The learned lower appellate Judge observed:
“R.W. James in his Modern Land Law of Nigeria (1982 reprint) at page 159 said ‘on the death of a woman, her landed property goes to her children equally, and this appears also to be the rule on the death of a man who had contracted a monogamous union or potentially polygamous marriage, or had issue only by one wife.’ PW1 conceded that his father lived a monogamous life and he had five children who survived him. He mentioned the names of the five children and he was the fourth child. Three females were older than him and he has a brother. Three of the five children signed exhibit C1 and the name of PW1 was in the document but he did not sign his portion. The question is if three of the five children executed the sale agreement in 1971 will PW1 alone have the power to sell the same land to the respondent in 1997 when the land is jointly owned? Furthermore, PW1 conceded that the appellant informed him that he bought two plots of land from his sisters. The document Exhibit C1 did show that more than two plots of land were purchased from PW1’s sisters. PW1 did not do anything to set aside the sale done by his sisters to the appellant on behalf of the family when he became aware but instead went to sell the same land to the respondent. There is no doubt that the sale by three out of the five beneficiaries in the land cannot be void because they own the land jointly, at best it will be voidable at the instance of the two that did not participate. PW1 did not apply to set aside the sale to the appellant but under his misguided opinion of being the ‘Daud Okunrin’ went to sell the land to the respondent. This I believe he cannot do.”
I cannot agree more with the learned judge of the appellate High court. The fact of joint inheritance/ownership of the land in Exhibit C1 by PW1 and his other 4 siblings is further reinforced by the recital in the document. The land was said to be the share of the vendors with PW1 on the land of their late father, now owned jointly. It will surely be most inequitable and unconscionable to allow PW1, the 4th child in the family of five to single handedly resell in 1997 property sold to the respondent by three of his siblings in 1971 after the respondent had been in possession of the land for 26 years. PW1’s dubious act and lack of good faith was exposed by his evidence that the respondent was his father’s tenant and that he continued in possession of the land as a tenant after his father’s death. This was obviously an attempt to explain the fact that the respondent has been in possession for so long. The question now is assuming indeed but without conceding that the respondent had been a tenant in possession of the land for so long, does PW1 have the authority to sell the property to the appellant without first determining the tenancy or even informing the respondent of his intention in view of the cash crops planted on the land by the respondent in the past 26 years?
Learned counsel for the appellant had contended in his brief that PW1 did not admit the 1969 sale contained in exhibit C or even executing the document. He contended that the failure to prove due execution of the exhibit robbed the document of any evidential value and rendered it unreliable. In answer to this contention, the learned appellate High Court judge at page 109 of the record observed: –
“I cannot understand the argument of Mr. Awosunle concerning the due execution of Exhibit C. I am sure he was not saying that PW1 did not sign the document. The fact that two of the four who were to sign did not sign will not be taken advantage of by PW1 who actually signed. I cannot see the argument of Mr. Awosunle that Exhibit C cannot be used because the document was not shown to PW1 while he was giving evidence. The appellant tendered the document without any objection from Mr. Awosunle who represented the respondent at the lower court and not a single question was asked the appellant about the document in cross-examination. In the case of Broadline Enterprises Ltd V. Monterey Maritime Corporation & Anor (1995) 9 NWLR (Pt.417) 1 @ 27 Igu J.S.C. said:-
‘I think the first point must be made for a better appreciation of their resolution that where evidence given by parties to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established.’
There is no doubt in my mind that PW1 executed Exhibit C which sold the land covered in it to the appellant in 1969.”
I am in total agreement with the learned appellate High court Judge. Mr. Awosunle, counsel for the plaintiff in the customary court who should have raised objection to the admissibility of Exhibit C in that court or challenged there and then the authenticity of the document or its due execution by PW1 kept silent and did not put any question to the witness DW1 in cross-examination. Page 24 of the record, line 17 reads:
“There was purchase agreement for the land. The agreement was tendered. Plaintiff’s counsel examined the agreement. He raised no objection. It was admitted as Exhibit C – C1.”
With due respect to learned counsel for the appellant, all his strenuous arguments on Exhibit C such as disclaimer and lack of due execution by PW1 are mere after thought and unhelpful to the appellant’s stand in the appeal. The trial was after all in a customary court where pleadings are not filed. PW1 did not directly or indirectly put the execution of the exhibit in issue in his evidence. Learned counsel for the respondent is right that an examination of the signatures of PW1 in exhibit A and exhibit C shows clearly that the signatures are the same. All the cases referred to by counsel for the appellant on these points are inapposite and I need not waste further time on the matter except to add that the appellant in contending that the various documents tendered by the respondent are unregistered registrable instruments and so offends Section 16 of the lands Instruments Registration law forgot yet again that the trial was in a customary court. The transactions evidenced by the documents were made under native law and custom which does not require registration of the documents. Further the documents are admissible as evidence of payment of purchase price for the land. Even exhibit A tendered by the appellant is an unregistered document of the same nature as those tendered by the respondent. See Erhunmunse v. Ehamire (2003) 13 NWLR (Pt. 837) 353 @ 377 E – G:-
“Customary Courts are not superior courts of record. No pleadings are filed in them either. Accordingly, the technical rules and/or procedure which govern the trial of actions in the superior courts of record are not stringently applied in those Courts. The only material before the Customary Courts is the plaintiff’s claim which is the initiating process in all civil suits filed in those courts. Trials are conducted in the Customary Courts in a summary manner and the only opportunity a defendant has to project his case is by oral evidence when he and his witnesses testify before the court in his own defence.”
The appellant cannot therefore in this appeal seek to rely on technical procedural issues which do not apply in customary courts. The respondent gave evidence of his being put in possession, the planting of cash crops on the land and that no one had disturbed him on the land for over 25 years since the dispute he had with Akinyode one of his boundary men which was settled by his vendors. The appellant himself also admitted that the respondent was in possession for many years from the time of his father but as a tenant. Equity cannot allow the appellant to sell in 1997 to another, land sold by his family to the respondent in 1969 and 1971 and in respect of which the respondent had been in possession for over 26 years before the purported sale. It is rather strange that it took the appellant 8 years to sue the respondent after the alleged trespass in 1997. It further raises questions of good faith on the part of PW1. PW1 is estopped by his conduct from having any dealing whatsoever with the land having led the respondent into believing in his concurrence to the sale of the land to him and having left him in occupation and possession of the land until the year 2005 when this suit was instituted.
For all of the above reasons, the sole issue for determination in this appeal is resolved against the appellant and in favour of the respondent. I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the High Court of Ondo State, Ondo Judicial division in Suit No HOD/5A/2008 sitting its appellate jurisdiction delivered on 4/3/09 is hereby affirmed. Costs of N70,000.00 are awarded against the appellant and in favour of the respondent.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had a preview of the judgment of my learned brother, Chinwe E. Iyizoba, JCA just delivered. His Lordship has painstakingly considered and resolved the issues in contention in this appeal. For the reasons ably advanced in the lead judgment, I also dismiss the appeal. I affirm the judgment of the lower court and abide by the order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother – IYIZOBA, JCA. His Lordship has comprehensively considered the appellant’s preliminary objection and rightly resolved same. Also, the issues were properly condensed into one and rightly resolved in favour of the respondent. I agree that the preliminary objection has merit and I also uphold it. I agree with my learned brother that the appeal lacks merit and I hereby dismiss it.
I abide by all the consequential orders in the lead judgment, including the award of costs against the appellant.
Appearances
Bade Awosunle Esq.For Appellant
AND
A. O. Thomas Esq., with V. Akindiose Esq.,For Respondent
