PASTOR BADMUS AKINKUMI v. RASHEED ADEBOLA BAKARE
(2013)LCN/6099(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2013
CA/I/187/2008
RATIO
LAND LAW: DECLARATION OF TITLE: WHETHER THE PARTY CLAIMING A DECLARATORY ORDER HAS THE BURDEN TO PROVE THE IDENTITY OF THE LAND
“The claim before the trial court sought a declaratory order. A Plaintiff who seeks a declaratory order bears the burden of showing the boundaries or identity of the land in dispute. In the Apex Court decision of MAKANJUOLA VS. BALOGUN (1989) 3 NWLR (PT.108) 192 at 200 and UDOFIA V. AFIA 6 WACA 216 at 27, without such proof the claim would fail.” Per UWA, J.C.A
EVIDENCE: CONTRADICTIONS: HOW THE COURTS SHOULD HANDLE CONTRADICTIONS IN THE EVIDENCE OF PARTIES
“Dealing with the issue of contradictions in evidence, the Supreme Court stated thus in the case of Igbi vs. State (2000) 3 NWLR part 648 page 169 at p. 188 also reported in (2000) 2 SC 67. “Whether contradictions in the evidence of a witness affects the quality of the evidence of the witness is primarily for the trial court to determine having regard, no doubt, to the rest of the evidence of the witness and the fact or facts in respect of which such contradictory evidence has been given. Moreover the duty of the trial court is to determine whether there were contradiction and if there were, to advert to them and then take them into consideration in the evaluation of the credit of the witnesses.” Per DANIEL-KALIO, J.C.A
“Now, the law is as stated in the case of Nwogo vs. Njoku (1990) 3 NWLR part 140 page 570 at p. 581 which is that in land matters, the first duty of a plaintiff who is claiming a declaration of title to land, trespass and injunction is to show quite clearly and establish the area and the boundaries of the land in dispute to which his claim relates as no court will grant a decree or declaration of title in respect of an unidentified area. What comes out clearly in the case just cited is that the duty of a plaintiff (the respondent in this case) is not to merely show the area in dispute, but extends to establishing the boundaries of the land in dispute.” Per DANIEL-KALIO, J.C.A
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
PASTOR BADMUS AKINKUMI Appellant(s)
AND
RASHEED ADEBOLA BAKARE Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over the ownership of land. At the trial stage, it was heard and determined by the Ogun State High Court. The case commenced in 1998. Judgment was delivered in 2005. From what can be pieced together from the pleadings of both parties in the court below, the applicant’s vendors and the respondent are of a common ancestry, or put more accurately, identify a common denominator in Bakare Mogaji Sanusi and his father identified by the respondent simply as Sanusi, but by the appellant as Agbabiaka Sanusi.
The respondent’s account as gathered from his amended statement of claim at page 63-66 of the record, is that the land originally belonged to Lagun son of Omo Oba Ijasi who first settled on the land. Lagun was from Ijasi in ljebu-Ode in Ogun State. He had three children, Solu, Oguntola and Disu who inherited the land at his death. Ogunsola one of Lagun’s children aforementioned, had two children namely Sadiku and Sanusi. Sanusi begat Bakare Mogaji Sanusi. Bakare Mogaji Sanusi had seven children, Z. O. Bakare, Amisu Bakare, Rasidi Adeoba Bakare the respondent in this appeal, Abibatu, Muibat, sauriatu Bakare and Tola Bakare. While Z. O. Bakare, Abibatu and sauriatu Bakare were of the same mother, the respondent, Muibat and Tola Bakare were of a different mother. Amisu Bakare was an only child of the mother. The family of Bakare Mogaji Sanusi thus comprised of three branches with each branch made up of the children of each wife of Bakare Mogaji Sanusi.
Bakare Mogaji Sanusi was given a piece of land along Ibadan Road Ijebu-ode in 1948 upon a request by him to the family. He surveyed the land that same year and in 1949, built a store on part of it. He also leased part of the land to a company known as G. B. Ollivant Ltd. In 1973, he distributed his land according to the branches earlier described. The distribution was done in the presence of all his children with his first son Z. O. Bakare playing a prominent role. That first son built a storey building on the portion of land that devolved on his branch of the family. That portion of land was where Bakare Mogaji Sanusi had his store. The remainder portion of land consisting of two plots of land devolved on the respondent’s branch and the branch of Amisu Bakare. It is that portion that is in dispute in this case on appeal.
The case of the appellant (the defendant in the court below) is that the land originally belonged to Pa Agbabiaka Sanusi who first settled on it. He had two wives and seven children. The first wife had six children namely, Salamotu, Bakare, Sadatu, Yesufu, Osenotu and Amusa. Bakare one of the named children also known as Bakare sanusi, otherwise known as Bakare Mogaji sanusi was the father of the respondent.
Bakare Mogaji sanusi was the first male child. He built a store on the land. In 1972 Bakare Mogaji Sanusi shared the remaining portion of the land into three parts. A part was given to Awawu the only living issue of one of the wives of Pa Agbabiaka Sanusi, the original owner of the land; a part was also given to the Amusa Mojidi section of the family. That part of the land was taken by Mogaji Hamzat. A third part of the land was given to Falilat Kuku and Bisiriyu Yesufu, the children of Pa Agbabiaka sanusi by Yesufu.
The portion of the land occupied by Bakare Mogaii Sanusi was given to Z.O. Bakare who built on it.
Awawu who had a part of the divided land all to herself being an only child of her mother being childless herself, gave her share of the land to Falilat Kuku, Bisiriyu Yesufu and Mogaji Hamza. It is that land of Awawu that Falilat Kuku and Bisiriyu Yesufu sold to the appellant.
From the rather detailed account above, a few common strands in the narrative of both parties to the appeal emerge. Firstly, the respondent and the appellant’s vendors recognize Sanusi or Agbabiaka Sanusi as their grandfather or father. Both parties speak of the family being comprised of three branches although differing on the configuration or composition of those branches. Both parties also agree that the family land was shared circa 1972. Both parties lay claim to the land in dispute.
The claim before the court below reads:
1. A declaration that the plaintiff (respondent in the appeal) is entitled to the statutory right of occupancy in respect of the subject matter of this suit being the parcel of land situate, lying and being at Ibadan Road, Ijebu-Ode and which is in survey plan No.SAP/62A/48 and which property belongs to the plaintiff’s branch of the Mogaji Sanusi family by virtue of inheritance.
2, N50,000 being general damages for the trespass committed by the defendant when on the 5th day of April 1998 the defendant entered the said parcel of land at Ibadan Road Ijebu-Ode and put up shed on the said parcel of land without the knowledge and consent of the Plaintiff.
3. Injunction restraining the defendant, his agent, servants or anybody claiming through him from further acts of trespass.
After hearing the parties, the learned trial Judge T. Ibikunle Adesalu J. came to the conclusion that the respondent is entitled to virtually all his claims. He therefore entered judgment in his favour and awarded N20,000 damages for trespass against the appellant. Dissatisfied with the judgment, the appellant appealed to this court. In his Notice of Appeal, he gave 4 grounds of appeal as follows:
The learned trial Judge erred in law and on the facts when he held that the grant of the lease, Exhibit A by the father of the plaintiff in his own name was an exercise of right of ownership when there was no evidence before the trial court that Exhibit ‘A’ is related or relevant to the land in dispute;
2. The learned trial Judge erred in law and on the facts when he held that the land in dispute forms part of the premises leased in Exhibit A when there was no evidence before the court that the land in dispute forms part or was the land in Exhibit A;
3. The learned trial Judge erred in law when he held that the plaintiff has discharged the onus on him by proving his title through his father when the plaintiff did not successfully trace the root of title of his father to the land in dispute;
4. The learned trial Judge erred in law by failing to give adequate consideration to the evidence adduced by the defendant and his witnesses and thereby came to a wrong conclusion;
The above grounds are slightly edited by me to make them conform better with grammatical rules.
As can be seen from the grounds above, the refrain of the appellant is “the learned trial Judge erred in law”. Yet he did not supply separate particulars to indicate how the learned trial Judge “erred in law”. An appellant like the one here who complains in the Notice of Appeal that the trial Judge “erred in law” without giving particulars of how the Judge erred can be likened to a patient who complains to a doctor simply that “I am sick” without giving any hint of the manner of sickness. Such a patient makes treatment harder since diagnosis becomes much more difficult. To make a ground of appeal more decipherable the Rules of Court require the grounds of appeal to disclose particulars. Order 6 rule 2 of the court of Appeal Rules 2011 states:
“Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated”.
As stated by Akpata JSC in Globe Fishing Industries Ltd. & Ors vs. Chief Folarin Coker (1990) 7 NWLR part 162 page 265 at 300.
“The particulars and the nature of the error or misdirection alleged in a ground of appeal are the specific reasoning, finding or observations in the judgment or ruling relating to or projecting the error or misdirection complained of. They are in a sense, the itemization of the error or misdirection in the judgment or ruling”.
Having given the grounds of appeal without separate particulars, I was minded to strike out the grounds in limine for incompetence. However on further cogitation and research I find that it will not be the correct approach in this instance. This is because a perspicacious reading of the grounds reveals that the particulars are discoverable from the grounds. That being the case, I will be guided by the decision of the Supreme Court in Osason vs. Ajayi (2004) 18 NSCQR p. 40 where the Court per Uwaifo JSC said thus-
“Where the particulars of error in the law or misdirection of the ground complained of are either not set out separately or not discoverable through careful perusal as having been incorporated into the body of the ground of appeal, the ground of appeal will contravene the relevant law…the ground will be incompetent and liable to be struck out”.
The particulars in this case I think are discoverable from some of the grounds of appeal, particularly grounds 1 and 2.
Appellants Counsel Chief Adebiyi Odugbesan identified the following single issue, with which respondent’s counsel agreed, as the issue for determination in this appeal:-
“whether on the face of the pleadings filed and exchanged by the parties, the exhibits tendered and the evidence adduced before the lower court, the trial Judge was right in granting the order of declaration of title to the land in dispute and the claims for damages for trespass sought by the respondent against the appellant”.
Learned Counsel referred to the evidence in chief of the PW1 in the lower court and his evidence under cross-examination and submitted that the evidence on how the respondent’s father acquired his title to the land is self contradictory. Besides, he argued, the respondent failed to tender the purchase receipt of the land. His failure to tender it he contended is fatal to his case.
Learned Counsel referred to the portion of the judgment of the trial judge where he held that the land in dispute forms part of the premises leased in Exhibit ‘A’ He contended that there is no evidence before the trial Judge to support that conclusion. He further submitted that the trial Judge should not have come to that conclusion without a composite plan showing the area claimed by the respondent. While conceding that a plan is not a sine qua non for the purpose of establishing a land in dispute, learned counsel argued that the law expects clarity in the description of a land in dispute. He contended that the description of the land in this case cannot be said to be clear. He referred the court to the case of Agbonifo vs. Aiwereoba (1998) 1 NWLR part 70 page 325. He submitted that the evidence of the second witness of the respondent in the court below in respect of the location of the land in dispute is at variance with the description in the pleadings.
Learned counsel referred to the case of the appellant as presented in the court below with respect to the purchase of the land from appellant’s vendors who got the land through inheritance from their grandfather Agbabiaka. He contended that the evidence of the appellant’s witnesses in that regard was not challenged and as such is deemed admitted by the respondent.
In what would appear to be a contradiction of his earlier submission on the respondent’s claim to ownership of the land, learned counsel submitted that from the evidence adduced by both parties, the parties in this appeal are relying on traditional history in establishing their respective claims to ownership of the land though differing on their traditional evidence. He contended that where proof by traditional evidence is relied on, the traditional evidence must be conclusive otherwise the plaintiff i.e. the respondent in this case, would not have discharged the onus on him. Counsel contended that the respondent’s traditional evidence is inconclusive and self contradictory and as such the respondent did not prove his case before the court below. He urged the court to resolve the only issue for determination in favour of the appellant.
As earlier pointed out in this judgment, respondent’s counsel in his brief of argument agreed that the issue for determination in this appeal is as formulated by his learned friend for the appellant. He adopted ipsissimis verbis the said sole issue.
On his learned friend’s submission that the respondent’s evidence in proof of his father’s title is self contradictory. Learned counsel Oluwole Aina Esq. submitted that the point is incompetent as it is not covered by any of the grounds of appeal from which the single issue for determination is distilled.
In the alternative, respondent’s counsel referred to the evidence of PW1 at page 43 of the record, the evidence of the said witness under cross-examination at page 68 of the record and the judgment of the trial Judge at page 88 of the record. He submitted that the finding of fact of the trial Judge was not attacked as being perverse or unwarranted. He submitted that there is no ground of appeal and consequently no issue formulated complaining about the finding of the trial Judge. He referred to Intercontractors (Nig.) Ltd. vs. UAC of Nigeria Ltd. (1988) NSCC vol.19 part 1 page 737 at 750. He contended that since the finding of the trial Judge was not directly challenged via a ground of appeal and issue specifically formulated, the finding, whether right or wrong, remains binding on the parties. He cited the case of Sule vs. Nigerian Cotton Board (1985) 6 SC 62 at 75-76.
On the submission of his learned friend that the failure of the respondent to tender a document of title duly authenticated is fatal to his case since the respondent is relying on sale of the land to his father, learned counsel submitted that the issue raised does not arise from the proceedings or the judgment of the lower court. He urged the court to discountenance it.
On his learned friend’s submission on the identity of the land, respondent’s counsel submitted that if the identity was not clear, the appellant should have asked for particulars. He submitted that the parties were very clear about the identity of the land in dispute.
On his learned friend’s submission that the trial Judge relied on Exhibit A without giving consideration to the appellant’s case’ learned counsel submitted that it is the duty of the trial court to evaluate evidence and pronounce on their credibility or probative value. He cited the case of Fagbenro vs. Arobadi (2006) vol. 141 LRCN 2413 at 2434. He urged this court to resolve the single issue raised against the appellant and dismiss the appeal.
I have said earlier in this judgment that the only reason why I have not struck out the grounds of appeal in limine is because some of the particulars are discoverable through a careful reading of the grounds of appeal. I have also earlier set out the sole issue for determination as agreed by counsel to both parties in the appeal. For ease of reference, I will repeat the sole issue here. It reads:
‘Whether on the face of the pleadings filed and exchanged by the parties, the exhibits tendered and the evidence adduced before the lower court, the trial judge was root of title that the evidence of PW1 in his evidence in chief contradicted his evidence under cross-examination with regard to how his father acquired his title to the land in dispute. This is what the trial Judge said in his judgment at page 88 of the record:
“Plaintiff gave traditional evidence that his father was granted the land by Lagun family and offered traditional gifts in consideration but answered in cross-examination that his father purchased the land from Baba Lagun also with traditional gifts, Learned Counsel Mr Aladesua made a heavy weather of this contradiction. I do not think that this is fatal to plaintiff’s case as Mr Aladesua has submitted”.
It needs to be stressed that a trial Judge is in the best position to evaluate evidence given by a witness before him since he has the advantage of hearing and watching the witness and weighing what he says against other evidence presented in court. A trial Judge therefore evaluates the evidence of a witness not through the narrow prism of a particular piece of evidence but from the gamut or range of evidence placed before him. A good trial Judge should be able to tell the difference between a witness who is being economical with the truth and one who merely slips on the proverbial banana peel under the fire of cross-examination. Once a trial Judge has taken into consideration an apparent contradiction and come to an opinion, the Appellate Court will hardly substitute its own opinion for that of the trial Judge.
Dealing with the issue of contradictions in evidence, the Supreme Court stated thus in the case of Igbi vs. State (2000) 3 NWLR part 648 page 169 at p. 188 also reported in (2000) 2 SC 67. “Whether contradictions in the evidence of a witness affects the quality of the evidence of the witness is primarily for the trial court to determine having regard, no doubt, to the rest of the evidence of the witness and the fact or facts in respect of which such contradictory evidence has been given. Moreover the duty of the trial court is to determine whether there were contradiction and if there were, to advert to them and then take them into consideration in the evaluation of the credit of the witnesses”.
I am satisfied that in this case that the trial Judge adverted his mind to the contradictory evidence and came to a decision. I respect his views.
It does seem to me that appellant’s counsel was ambivalent on the question of the root of title of the respondent in his brief of argument. In one breath he argued that there was a contradiction in the evidence of the respondent with regard to the respondent’s root of title (page 5 – 6 of the brief) in another breath, he said that both parties in the case relied on traditional evidence in establishing their respective titles. Considering his ambivalence, I cannot fault the trial Judge in his remark contained in the passage quoted above that counsel “made a heavy weather of the contradiction”.
To the extent of the pronouncement of the learned trial Judge on the question of contradictory evidence with regard to the root of title of the respondent, I will resolve the lone issue in favour of the respondent.
I will now consider the lone issue as it relates to the findings of the trial Judge on the area of the land in dispute.
Appellant’s counsel had argued that there was nothing to show that the land in dispute is the land upon which the store, the subject of the lease in Exhibit A was built or that it forms part of it. He further submitted that there was no clear description that made the land in dispute ascertainable. In his own submission, respondent’s counsel argued that the parties were very clear about the identity of the land in dispute and that if the appellant was not clear about it, he should have asked for particulars.
Now, the law is as stated in the case of Nwogo vs. Njoku (1990) 3 NWLR part 140 page 570 at p. 581 which is that in land matters, the first duty of a plaintiff who is claiming a declaration of title to land, trespass and injunction is to show quite clearly and establish the area and the boundaries of the land in dispute to which his claim relates as no court will grant a decree or declaration of title in respect of an unidentified area. What comes out clearly in the case just cited is that the duty of a plaintiff (the respondent in this case) is not to merely show the area in dispute, but extends to establishing the boundaries of the land in dispute. From his pleadings in his amended statement of claim, the respondent seemed to be acutely aware of his duty in this regard and he therefore pleaded in paragraph 20 of the said amended statement of claim thus:
“The area in dispute and which the defendant trespassed upon by erecting a shed on is the portion of the land owned and possessed by the plaintiff’s family, and it will be shown on a plan yet to be prepared and later tendered in evidence”.
Unfortunately, the promised plan was not tendered before the lower court. Nonetheless, the learned trial Judge went on to hinge the respondent’s entitlement to the land in dispute on the probative value he attached to Exhibit A.
Now with regard to Exhibit A, the evidence of the respondent testifying as pW1 is quite clear. At page 67 of the record, he said thus:-
“The lease in Exhibit ‘A’ expired in 1973 and my father gave the store to Cocoa dealer. The store and the vacant land at the back were divided into three equal portions among the three branches of the family”.
The witness confirmed his evidence stated above under cross-examination when he said:
“It was in 1973 that my father divided the land between us”
It is clear therefore that the land in Exhibit ‘A’ has been divided into three and given out to the three branches of the family. The learned trial Judge was therefore wrong to have merely held at page 89-90 of the record that “the land in dispute forms part of the premises leased in Exhibit ‘A’.
His conclusion above falls short of the requirement of the law that a land in dispute be clearly ascertained as to its precise boundaries. In the case of Arabe vs. Asanlu (1980) 5-7 SC 78 at 90 -91 the Supreme Court stated thus-
“What is necessary is that the land the subject of the award must…. be ascertained with definite certainty… the acid test as stated by the former West African Court of Appeal and with which I am in respectful agreement – is whether a surveyor, taking the record of proceedings (and judgment of the native or customary court) can produce a plan showing accurately the land to which title has been given”.
I am satisfied that the acid test as prescribed above cannot be passed in this case as I am convinced that no surveyor however astute can, armed only with the record of proceedings and the judgment of the lower court, accurately produce a survey plan of the land in dispute.
The law is that where a judgment does not show a definite and precise boundary, the judgment cannot stand. See Arabe vs. Asanlu (supra) at page 88. I am satisfied for the above reason that the judgment the subject of this appeal cannot stand. The appeal is accordingly allowed. As it is, the case must go back to the lower court for the proper thing to be done. It is therefore ordered that this case be tried afresh by a judge of the High Court of Ogun State other than the trial Judge.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother OBIETONBARA DANIEL-KALIO, J.C.A. I agree with his reasoning and conclusion arrived at that this matter be tried de Novo.
By way of emphasis I would comment on need to plead and prove the identity of the land in dispute which includes the boundaries and the features on the land. The claim before the trial court sought a declaratory order. A Plaintiff who seeks a declaratory order bears the burden of showing the boundaries or identity of the land in dispute. In the Apex Court decision of MAKANJUOLA VS. BALOGUN (1989) 3 NWLR (PT.108) 192 at 200 and UDOFIA V. AFIA 6 WACA 216 at 27, without such proof the claim would fail.
The duty on the trial court is to determine whether or not the parties are ad idem on the identity of the land in dispute, see OLUSANMI V. OSHASONA (1992) 6 NWLR (PT.245) 22. In the present case both parties are laying claim to the land in dispute, which the extent and identity is not clear. The Plaintiff in paragraph 20 of his statement of claim pleaded a non-existent plan that he was yet to prepare and later tender. This is not tenable in law.
The learned trial judge with respect could not have been certain of the extent of the land in dispute. See, ADENIRAN V. ASHABI (2004) 2 NWLR (PT.857) 375 at 379 and FAGUNWA VS. ADIBI (2004) 17 NWLR (PT.903) 545 at 549. Once the area in dispute is not ascertainable it is fatal to the case of the plaintiff.
For the fuller reasons given by my learned brother, I also allow the appeal and abide by the order that the case be remitted back for trial de Novo by another judge of the Ogun State High Court other than the trial judge. I abide by the order made as to costs.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, O. Daniel-Kalio, JCA. I am in agreement with the reasoning and conclusion contained in the said judgment, which I also adopt as mine.
I abide by the consequential orders made therein.
Appearances
For Appellant
AND
For Respondent
