SAIBU AJAGBE & ORS V. ALHAJI MUSTAFA OYEKOLA & ANOR
(2013)LCN/5860(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2013
CA/I/170/2009
RATIO
COURTS: DUTY OF THE TRIAL COURT
A trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd. V. Ajeh (2011) 10 NWLR (pt. 1256) 574, Nacenn Nigeria Ltd. V. Bewac Automotive Producers Ltd. (2011) 11 NWLR (pt. 1257) 193, Wachukwu V. Owunwanne (2011) 14 NWLR (pt. 1266) 1.
It is the primary responsibility of a trial court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the court. The procedure is crucial in its observance. The trial court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURTS: THE LOWER COURT MUST NOT INTERFERE WITH EVIDENCE PRESENTED TO IT
The lower court must not impair the evidence either with its personal knowledge of matters not placed and canvassed before it or by inadequate evaluation, and should endeavour to avoid vitiating the case presented by the parties through its own wrongly stated or misapplied principle of law. It must carefully examine the evidence and clearly understand the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision – Mogaji V. Odofin (1978) 4 SC 91, Adeleke V. Iyanda (2001) 13 NWLR (pt. 729) 1, Okoko V. Dakolo (2006) 14 NWLR (pt. 1000) 401, Tippi V. Notani (2011) 8 NWLR (pt. 1249) 285, Momoh V. Umoru (2011) 15 NWLR (pt. 1270) 2117.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUDGMENT: WHEN THE DECISION OF A COURT IS SAID TO BE PERVERSE
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu V. Idu (2006) 12 NWLR (pt. 995) 657, Momoh V. Umoru supra. Where a judgment of a trial court is attacked on the ground of finding or non-finding of evidence or evaluation of evidence, the Court of Appeal will seek the following (i) the evidence before the trial court; (ii) whether the trial court accepted or rejected any evidence upon the correct perception; (iii) whether the trial court correctly approached the assessment of the value on it; (iv) whether it used the imaginary scale of justice to weigh the evidence on either side; or (v) whether it appreciated, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof Egonu V. Egonu (1978) 11-12 SC 111, Daramola V. Attorney General, Ondo State (2000) 7 NWLR (pt. 665) 400, Momoh V. Umoru supra.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PLEADINGS: PARTIES AND THE COURTS ARE BOUND BY PLEADINGS
It is trite law that the parties and the court are bound by the pleadings and a court cannot make out its own case outside the pleadings of the parties. A court should not set up for parties a case different from the one set up by the parties in the pleadings – Skye Bank Plc V. Akinpelu (2010) 9 NWLR (pt. 1198) 179 and Baliol (Nig.) Ltd. V. Navcon (Nig.) Ltd. (2010) 16 NWLR (pt. 1220) 619.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
LAND LAW: DECLARATION OF TITLE TO LAND: IN SUCH AN ACTION, THE PLAINTIFF WINS ON THE STRENGTH OF HIS CASE
It is trite that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case and where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ukaegbu V. Nwololo (2009) 3 NWLR (pt. 1127) 194 Adu V. Gbadamosi (2009) 6 NWLR (pt. 1136) 110, Iroagbara V. Ufomadu (2009) 11 NWLR (pt. 1153) 587, Oyeneyin V. Akinkugbe (2010) 4 NWLR (pt. 1184) 265. To succeed in a claim of ownership of land, a claimant must satisfy the court as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Okelola V. Adeleke (2004) 13 NWLR (pt. 890) 307, Ajiboye V. Ishola (2006) 13 NWLR (pt. 998) 628 and Edohoeket V. Inyang (2010) 7 NWLR (pt. 1192) 25.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
LAND LAW: 5 WAYS TO PROVE LAND OWNERSHIP IN NIGERIA
It is axiomatic in our jurisprudence that there are five recognized ways of proving ownership of land in Nigeria. These are (i) by evidence of traditional history; (ii) by documents of title which are duly authenticated in the sense that due execution must be proved; (iii) by acts of ownership such as selling, leasing, renting out or farming on all or part of land and which are numerous and positive enough and extending over a sufficient length of time to warrant the inference that the party was the true owner of the land; (iv) by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership; and (v) by proof of possession of connected or adjacent land in circumstances that render it probable that the owner of such connected or adjacent land would be the owner of the land – Egwa V. Egwa (2007) 1 NWLR (pt. 1014) 71, Yusuf V. Adegoke (2007) 11 NWLR (pt. 1045) 332, Ugwunze V. Adeleke (2008) 2 NWLR (pt. 1070) 148. A party claiming declaration of title to land need not plead and prove more than one of the five recognized methods of establishing title to land in order for him to succeed. Each of the five methods will suffice independent of the others to prove title – Lawson V. Manuel (2006) 10 NWLR (pt. 989) 569, Amayo V. Erinmwingbovo (2006) 11, NWLR (pt. 992) 669, Ebenogwu V. Onyemaobim (2008) 3 NWLR (pt. 1074) 396.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
SAIBU AJAGBE
AZEEZ ADEGOKE
TAYE AKANDE
DAUDA ADEBAYO (for themselves and on behalf of Lakanye family of Lakanye’s Compound, Osogbo) Appellant(s)
AND
ALHAJI MUSTAFA OYEKOLA
ALHAJI ODUOLA ADELEKE (for themselves and on behalf of Adedunhan Family of Layiokun’s Compound, Osogbo) Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Osogbo Judicial Division of the High Court of Osun State delivered in Suit No HOS/60/95 on the 26th of July, 2005. The claims of the Appellants, as plaintiffs, in the suit were for:
i. Declaration of title of statutory right of occupancy to all the piece or parcel of land situate lying and being at Aigbe Farm area, off Oba Road, Osogbo and which is more particularly described and delineated in survey plan No. OS/894/98/LB.001 dated 15th of January, 1998 drawn by Olufemi Olunlade, licensed surveyor, and thereon edged Red.
ii. N20,000.00 being general damages for trespass committed by the defendants and their agents on the said land in dispute from 1994 until now.
iii. Perpetual injunction restraining the defendants, their servants, agents and/or privies and anybody claiming through them from committing further acts of trespass on the said land.
Pleadings were exchanged between the parties and the matter went to trial. In a judgment delivered on the 26th of July, 2005, the claims of the appellants were dismissed by the lower court. The Appellants were dissatisfied with the decision and they filed a notice of appeal dated the 4th of August, 2005 against the judgment. The original representatives of the family of the appellants in this appeal were one Raji Opoola and the first appellant herein but following the death of the said Raji Opoola, the second to the fourth appellants were added as parties and the appellants were granted leave by this Court to amend the notice of appeal on the 7th of February, 2011. The appellants filed an amended notice of appeal dated the 12th of November, 2010 on the 7th of February, 2011. The amended notice of appeal contained five grounds of appeal, including the omnibus ground of appeal.
In compliance with the Rules of this Court, the appellants filed a brief of arguments dated the 7th of February, 2011 and it consisted of thirty-six pages. The respondents filed a brief of arguments consisting of nineteen pages and dated the 20th of February, 2012 in response. The brief of arguments of the respondents was deemed properly filed by this Court on the 11th of July, 2012. At the hearing of the appeal on the 29th of November, 2012, counsel to the appellants and to respondents relied on and adopted their respective briefs of arguments.
In his brief of arguments, counsel to the appellants distilled five issues for determination from the five grounds of appeal and these were:
i. Whether Exhibit D2 tendered by the ddefendant in this suit which related to chieftaincy dispute could operate as issue estoppel in respect of this suit which related to title to land and when the plaintiffs/appellants did not make it an issue in their case put before the trial court.
ii. Whether the defendants/respondents could be held to have land near the land in dispute and the portion allegedly given to them by their ancestor Adedunhan was the portion allegedly occupied by the Defendants in view of the judgments in Suit No. HOS/69/94 and Appeal No. CA/I/140/2001 admitted as Exhibits P2 and P5 which decided that the defendants are not owners of the land, they are (sic) claimed to be theirs in this suit.
iii. Whether by virtue of the decisions in the judgments in Suit No. HOS/69/94 and Appeal No CA/I/140/2001 admitted as Exhibits P2 and P5 the defendants version of traditional evidence that Larooye had his own land and Lajomo had his own land being the original founders with common boundary and that Lajomo divided his own land between his children Sogbo and Adedunhan could be held to be more probable and accepted by the trial court.
iv. Whether by failing to consider the case put up by the Plaintiffs and evidence and exhibits tendered before the trial court in support, the Plaintiffs could be held not to have proved their case to be entitled to the declarations they sought.
v. Whether the learned trial court properly evaluated or did not evaluate the evidence tendered by the parties before finding that the Plaintiffs have not proved their case and are not entitled to the reliefs sought.
Counsel to the Respondents adopted the five issues for determination formulated by the Appellants’ Counsel.
Now, an issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye V. Nigerian Construction and Furniture Co. Ltd. (1991) 6 NWLR (pt. 199) 501 and G. Chitex Industries Ltd. V. Oceanic Bank International (Nig.) Ltd. (2005) 14 NWLR (pt. 945) 392. It is settled that it is not permissible to formulate more than one issue for determination from a ground of appeal – Eke V. Ogbonda (2006) 18 NWLR (pt. 1012) 506, Thomas V. Aderinokun (2008) 16 NWLR (pt. 1112) 184 and Ogbe V. Asade (2009) 18 NWLR (pt. 1172) 106. It is also not permissible to formulate issues for determination in excess of the grounds of appeal; in other words the number of the issues for determination must not exceed the number of the grounds of appeal filed – Amodu V. Commandant, Police College Maiduguri (2009) 15 NWLR (pt. 1163) 75, Pharma Deko Plc V. Nigeria Social Insurance Trust Funds Management Board (2011) 5 NWLR (pt. 1241) 431 and Durbar Hotel Plc V. Ityough (2011) 9 NWLR (pt. 1251) 41. The Courts have also stated that it is undesirable to formulate an issue in respect of each ground of appeal – Buraimoh V. Bamgbose (1989) 3 NWLR (pt. 109) 352, Anie V. Uzorka (1993) 8 NWLR (pt. 309) 1, G. Chitex Industries Ltd. V. Oceanic Bank International (Nig.) Ltd. (2005) 14 NWLR (pt. 945) 392 and Akpan V. Udoh (2008) 3 NWLR (pt. 1075) 590.
In the instant case, the Appellants formulated five issues for determination from five grounds of appeal which included the omnibus ground of appeal. A read through the five issues shows that the second and the third issues for determination are prolific and repetitive and so are the fourth and the fifth issues for determination. The Appellants are guilty of a proliferation of the issues for determination in this appeal. However, it is not yet the attitude of this Court to sanction such dereliction on the part of an appellant and the Court will only discountenance and ignore the proliferated grounds of appeal and proceed to consider the appeal on the proper issues arising from the grounds of appeal and decide the appeal on the merits – G. Chitex Industries Ltd. V. Oceanic Bank International (Nig.) Ltd. supra, Amodu V. Commandant, Police College Maiduguri supra and Ogbe V. Asade supra.
Further, a read through the Appellants’ brief of arguments also shows that Counsel to the Appellants failed to specifically connect the issues formulated in the brief of arguments to the ground of appeal they were distilled from. This is a requirement for a good brief of arguments – Chukwuma V. Ifeloye (2008) 18 NWLR (pt. 1118) 204 at 234-235, Igwe V. Ezeanochie (2010) 7 NWLR (pt. 1192) 61 at 78, Edoho V. State (2010) 14 NWLR (pt. 1214) 651 and Owena Mass Transportation Co.Ltd. V. Bidat Venture Ltd. (2011) 9 NWLR (pt. 1252) 303 at 310. But again this Court will not sanction the Appellants for this dereliction and will follow the comments of the Supreme Court in Dada V. Dosunmu (2006) 18 NWLR (pt. 1010) 134 that:
“…though it is very necessary and desirable for the learned counsel for the appellant to always relate or tie issues formulated for determination in the appellants’ brief to the grounds of appeal from which the said issues are distilled, failure to do so may not necessarily result in the issues being struck out for being incompetent particularly where in the opinion of the court, the issues can validly be distilled from the grounds of appeal and in such situation the court can on its own take a close look at the grounds of appeal and the issues as formulated and in order to do substantial justice between the parties, which is the preoccupation of the court, consider the said issues in its judgment…”
These anomalies in the brief of arguments of the Appellants are being pointed out to call the attention of Counsel to the need to always ensure that their briefs of arguments abide these essential requirements because of a growing intolerance to such non-compliance. In Amodu V. Commandant, Police College Maiduguri supra, Muntaka-Coomassie, JSC made the point at pg 85 E-F thus:
“I hold the view that in a very near future the proliferation of issues would attract a little bit harsher treatment, namely the offence of proliferation of issues will be met with zero tolerance. All the affected issues will then be struck out and expunged from the record on the ground of general contamination and no such issue or issues in excess will be saved. Enough is enough.”
It is hoped that Counsel will take heed.
From the grounds of appeal of the Appellants, it is the view of this Court that three issues arise for determination in this appeal and these are:
i. Whether the learned trial Judge was right in relying on the judgment in Suit No HOS/41/82, admitted as Exhibit D2, as creating issue estoppel in favour of the Respondents, as defendants, in this matter.
ii. Whether, in the circumstances of this case, the learned trial Judge was correct in not using the judgments in Suit No. HOS/69/94 and Appeal No CA/I/140/2001, admitted as Exhibits P2 and P5, to deconstruct the case put forward by the Respondents, as defendants, in this matter.
iii. Whether, on a proper evaluation of the evidence led by the parties in this matter, the learned trial Judge was right in his finding that the Appellants, as plaintiffs, did not lead conclusive evidence to prove entitlement to their claims.
Before going ahead to treat the issues for determination, it is pertinent to give some background facts. The appellants, as plaintiffs, filed a further amended statement of claim in the matter at the High Court (pages 23 to 26 of the records). The case of the appellants was that the land in dispute formed part of a larger parcel of land first settled upon by one Larooye (also called Laro) and one Sogbo, both of whom jointly founded Osogbo more than two hundred years ago. It was their case that Larooye became the first Ataoja of Osogbo and that on his death, he was succeeded by Sogbo as Ataoja of Osogbo and that thereafter one Aina Serebu became the Ataoja. It was their case that during the reign of Aina Serebu as Ataoja, part of the large parcel of land founded by Larooye and Sogbo, inclusive of the land in dispute, was partitioned amongst and granted absolutely to the descendants of Larooye and Sogbo, namely: Lakanye, Gbaemu, Oluawo, Oyero Laguda and Olude. It was their case that the land in dispute formed part of the portion of land shared and granted to Lakanye and that Lakanye took possession of the land shared to him and farmed thereon until his death and that on his death, the portion of land devolved on his descendants and they listed the persons who had been head of the Lakanye branch of the family from then till date.
It was the case of the appellants that they were descendants of Lakanye and they traced the root of each of them to Lakanye and they averred that they farmed on the land in dispute planting economic and cash crops and maintained undisturbed possession of the land until 1994 when the respondents went unto the land and started harassing them thereon. It was their case that the respondents were the descendants of one Adedunhan and did not own the land in dispute and neither did they own any parcel of land in the area of the land in dispute. They pleaded two judgments delivered in favour of the Oyero Laguda family against the respondents in Suit No HOS/69/94 and in Appeal No. CA/I/140/2001, in their further amended reply to the statement of defence (pages 29 to 30 of the records). The two judgments were admitted as Exhibits P2 and P5 at the trial.
The case of the Respondents in response as contained in their statement of defence (pages 7a to 7c of the records) was that one Lajomo and Larooye who were brothers of the same father migrated from Ipole to Osogbo and that Lajomo became the first Ataoja of Osogbo and was succeeded by Larooye. It was their case that they were descendants of Lajomo through his first son called Adedunhan, and they traced the root of the second respondent to the said Adeduhan, while the Appellants were descendants of Larooye and that both Lajomo and Larooye possessed different parcels of land in Osogbo. It was their case that during his lifetime, Lajomo divided his landed properties in different parts of Osogbo between his two sons, Adedunhan and Sogbodede and that the land in dispute formed the boundary between the parcels of land of Lajomo and Larooye and was part of the larger parcel of land shared to Adedunhan.
It was the case of the respondents that Adedunhan and his descendants, inclusive of themselves, have farmed on the said larger parcel of land, including the land in dispute, planting food and cash crops and have harvested palm fruits thereon and that they applied for and were paid compensation when portions of the large parcel of land was acquired by the Government of the defunct Western State of Nigeria. It was their case that the issues being canvassed by the appellants in this matter were subject of a decision of the Osogbo High Court in Suit No HOS/41/82 wherein the Court found as a fact that Adedunhan and Sogbo were brothers and children of Lajomo. The judgment was admitted as Exhibit D2 at the trial.
Issue One
On the first issue for determination, Counsel to the Appellants conceded that both the Appellants and the Respondents were parties in Suit No HOS/41/82, the judgment in which was admitted as Exhibit D2, and that they were both defendants in the suit having been sued by the Sogbo Ruling House of the Ataoja Chieftaincy stool. Counsel stated that the main issue for determination in that suit was whether the Respondents herein were members of any ruling house entitled to the Ataoja Chieftaincy and that in the judgment, Exhibit D2, the Court found that while they, the Appellants, were members of the Laro (also known as Larooye) Ruling House, the Respondents were members of the Lajomo Ruling House. Counsel stated that from their claims in the present suit and the case they made out before the lower court, the question of whether the Respondents were princes or not was not an issue in this matter. Counsel stated that the lower court dwelt extensively on Exhibit D2 in its judgment, under consideration in this appeal, and concluded that the plea of estoppels raised by the Respondents succeeded and that the land in dispute formed portion of the land shared to the Respondents when land was shared amongst the princes of Osogbo.
Counsel enumerated the necessary requirements to be established to sustain a plea of issue estoppel and he referred to the cases of Omnia Nigeria Ltd. V. Dyk-trade Ltd. (2007) 12 SCM (pt. 2) 525, Afolabi V. Governor of Osun State (2003) 11 SCM 15 and Anwoyi V. Shodeke (2006) 6 SCM 1. Counsel stated that issue estoppel applies to prevent parties or their privies from litigating issues in a matter which had been decided upon by a court of competent jurisdiction and which come incidentally in question in any subsequent proceedings. Counsel submitted that the claims, the issues and the subject matter in the present suit were not the same as those in Suit No. HOS/41/82, Exhibit D2, and that the decision of the court in that matter cannot operate as issue estoppel in this suit. Counsel submitted that the lower court went into technicalities and speculations without dealing with the legal results of pleaded facts and he referred to the case of Ezewani V. Onwordi (1986) 4 NWLR (pt. 33) 27. Counsel urged the Court to resolve the first issue in favour of the Appellants.
In his response argument on the first issue for determination, Counsel to the Respondents stated that the land in dispute in this matter is the Ataoya Chieftaincy land and that the lower court found that for anybody to be entitled to any portion of Ataoja Chieftaincy land, such a person must first establish beyond every iota of doubt that he is a prince to the stool of Ataoja Chieftaincy. Counsel submitted that it was this issue of whether the Respondents descended from a prince of the Ataoja stool that was answered in Exhibit D2 and which the lower court held to be relevant and as forming issue estoppel in the present suit. Counsel submitted that the requirements enumerated by Counsel to the Appellants as necessary to sustain a plea of issue estoppels were really requirements for a plea of res judicata and that a plea of issue estoppel did not recognize the similarity in the issues involved in the previous suit and the present one to be relevant. Counsel referred to the case of Adedayo V. Babatola (1995) 7 NWLR (pt. 408) 383 at 401, and 404. Counsel urged the Court to uphold the finding of the lower court on the issue.
The question of the issue estoppel arising from Exhibit D2 was considered by the lower court on pages 16 to 19 of the judgment (pages 98 to 101 of the records). The lower court stated at pages 16 to 17 of the judgment thus:
“Learned Counsel for the Defendants Chief Adejumo SAN relied on Exhibit ‘D2’ which he said settled the issue whether Adedunwon can benefit out of Ataoja stool. The plaintiffs in this case were the 9th, 10th, 11th and 12th Defendants in Exhibit ‘D2’. The learned counsel for the Defendants submitted that the plaintiffs are stopped from contending to the contrary that Adedunwon is a descendant of Lajomo.
In Exhibit ‘D2’ Adio J. found as a fact on 21/1/1988 that Sogbo and Adedunwon are brothers and that they were the children Talo had for Lajomo. And if Adedunwon was a son of Lajomo, his descendants would perfectly be entitled to be considered for selection as Ataoja of Osogbo within Lajomo ruling house (see page 26 of the said Exhibit ‘D’ (sic)).
In this case we are concerned with Declaration of Title to land. Both the Plaintiffs and the Defendants relied on traditional evidence to establish the root of their title to the land…
The Court discussed the purport of and the principles necessary for a successful plea of issue estoppel at pages 17 to 18 and concluded at pages 18 to 19 thus:
“The parties included the 5th and 5th defendants in Exhibit ‘D2’ who were represented by the defendants in this case while 9th, 10th, 11th and 12th Defendants in Exhibit ‘D2’ were represented by the Plaintiffs in this suit.
The issue as to whether the defendants were of Royal blood was determined in Exhibit ‘D2’ which is a final judgment. It is therefore settled that both parties have access to royal land and they individually rested their claim to root of title on traditional evidence.
The Plea of Estoppel raised by Learned Counsel for the Defendants Chief Adejumo SAN is hereby sustained. There is no appeal against that finding in Exhibit ‘D2’.”
Now, issue estoppel is the second pillar of the plea of estoppel per rem judicatam, the first pillar being cause of action estoppel. Issue estoppel occurs where an issue had earlier on been adjudicated upon by a court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the parties. The rule is that once one or more issues have been raised in a cause of action and distinctly determined or resolved between the same parties in a court of competent jurisdiction, then, as a general rule, neither party is allowed to re-litigate that or those decided issues all over again in another action between the same parties on the same issues. This is based on the principle of law that a party is precluded from contending the contrary or opposite of any specific point which having once been distinctly put in issue, has with certainty and solemnity been determined against him. Issue estoppels applies whether the point involved in the earlier decision is one of fact or law or one of mixed law and fact – Ikotun V. Oyekanmi (2008) 10 NWLR (pt. 1094) 100, Chief of Defence Staff V. Adhekegba (2009) 13 NWLR (pt. 1158) 332, Polyvalent (Nig.) Ltd. V. Akinbote (2010) 8 NWLR (pt. 1197) 506, Nikagbatse V. Opuye (2010) 14 NWLR (pt. 1213) 50, Makun V. Federal University of Technology, Minna (2011) 18 NWLR (pt. 1278) 190.
To determine whether a decision in question constitutes issue estoppel, one must look at the issues that call for determination in the case and in the decision of the court thereon. Thus, a party pleading issue estoppel must show that the issues canvassed and determined in the previous case were the same as those in the present suit; where this not done, the plea cannot be sustained – Ikeni V. Efamo (1996) 5 NWLR (pt. 446) 64, Ajiboye V. Ishola (2006) 13 NWLR (pt. 998) 628, Omnia (Nig.) Ltd. V. Dyktrade Ltd. (2007) 15 NWLR (pt. 1058) 576, Oshoboja V. Dada (2009) 18 NWLR (pt. 1172) 188. The issue must be an essential element in the claim or defence in both sets of proceedings. A mere agglomeration or proximity or affinity of the current issue with the previous one cannot found res judicata – Bamgbegbin V. Oriare (2009) 13 NWLR (pt. 1158) 410. Once it is made clear that the self same question is substantially in issue in the two suits, the precise form in which either suit is brought or the fact that the claimant in the one case was the defendant in the other is immaterial, estoppel subsists between the parties – Faleye V. Otapo (1995) 3 NWLR (pt. 381) 1, Oyerogba V. Olaopa (1998) 13 NWLR (pt. 583) 509 and Oseni V. Oniyide (1999) 13 NWLR (pt. 634) 258, Onyeabuchi V. Independent National Electoral Commission (2002) 8 NWLR (pt. 769) 417. An issue, for this purpose, is a decision as to the legal consequence of particular facts constituting a necessary step in determining what are the legal rights and duties of the parties resulting from the totality or bundle of facts Bamgbegbin V. Oriare supra. The submission of Counsel to the Respondents in paragraph 4.1.7 of his address that a plea of issue estoppel does not recognize the similarity in the issues involved in the previous suit and the present one to be relevant is a misstatement of the law.
The main question that arises for resolution on the first issue for determination in this appeal is whether the issues raised and resolved by the Court in Suit No. HOS/41/82, Exhibit D2, were the same or substantially similar to the issues that arise for determination in this matter?
Looking at Exhibit D2, Suit No HOS/41/82 was commenced by representatives of the Sogbo Family of Osogbo against several persons including the Appellants and the Respondents herein; the representatives of the Appellants were the ninth to the twelfth defendants while the representatives of the Respondents were the fifth and sixth defendants. The claims in that suit were for:
i. “Declaration that the declaration of the customary law regulating the selection of candidates to the Ataoja of Osogbo Chieftaincy made on 26th of January, 1981 by the chieftaincy committee of which the first defendant is Chairman and the second defendant is Secretary approved by the third defendant on 12th March 1981 and registered by or on behalf of the fourth defendant on the 13th of March 1981 is defective, illegal, null, void and of no effect in that it recognizes the Laro Ruling House whose claim had become stale and extinct. Or Alternatively
ii. Declaration that the 1981 Declaration of customary law regulating the selection of candidates to the Ataoja of Osogbo Chieftaincy is contrary to the custom of Osogbo in that it recognizes Laro and Matanmi as separate Ruling Houses even when both are one and the same dynasty and is to that extent null, void and of no effect.
iii. Declaration that the finding of the Ademola Commission of Enquiry in respect of the Ataoja of Osogbo Chieftaincy to the effect that the descendants of Adedunhan could be considered for selection as Ataoja of Osogbo within the Lajomo Ruling House is perverse and contrary to the customary law relating to the chieftaincy and therefore null, void and of no effect in that Adedunhan, their ancestor has no blood relationship with Lajomo or any other previous Ataoja of Osogbo.
iv. Declaration that the said 1981 Chieftaincy Declaration is irregular in that it recognizes Lajomo Ruling House, rather than Sogbo Ruling House, in spite of its finding and/or the evidence that Lajomo never ruled at Osogbo but Sogbo ruled at Osogbo after Laro.
v. Injunction restraining the defendants by themselves, their servants and/or agents or howsoever from recognizing or taking any steps in recognition of the said declaration.”
It was in consideration of the third prayer in the said suit that Y. Olayiwola Adio J (as he then was) found on page 26 of the judgment thus:
“I find as a fact that Sogbo and Adedunhan were brothers and that they were the children that Talo had for Lajomo. If Adedunhan was a son of Lajomo, his descendants would perfectly be entitled to be considered for selection as Ataoja of Osogbo within Lajomo Ruling House”
This was the finding that the lower court in the present suit said created an issue estoppel against the Appellants in favour of the Respondents. It is obvious from the case of the parties in that suit, that the issues before the Court for determination in the matter were (i) which Ruling Houses, according to the customary law of Osogbo, were entitled to present candidates for selection to the stool of Ataoja of Osogbo Chieftaincy stool; (ii) whether the descendants of Adedunhan were entitled to lay claim to the Ataoja of Osogbo Chieftaincy stool and present candidates for selection to the stool; and (iii) whether the declaration of the customary law regulating the selection of candidates to the Ataoja of Osogbo Chieftaincy made on 26th of January, 1981, approved on 12th March 1981 and registered on the 13th of March 1981 was a true reflection of the Osogbo customary law.
The reliefs sought in the instant matter and the respective cases made out by the Appellants and the Respondents in their pleadings have been set out in the earlier portion of this judgment. It is clear that the issue for determination before the lower court in this matter was – who between the Appellants and the Respondents are the owners of the parcel of land in dispute? Both the Appellants and the Respondents relied on evidence of traditional history in proof of ownership of the land in dispute but neither of them connected their assertion of ownership to the Ataoja of Osogbo Chieftaincy or to their right to present candidates for selection as Ataoja of Osogbo. The case of the Appellants was that the land in dispute formed portion of a parcel of land that were jointly founded and first settled by their ancestor, Larooye (Laro), and one Sogbo and that the land in dispute was subsequently shared and granted absolutely to their lineage through Lakanye. The case of the Respondents was that the land in dispute formed portion of a parcel of land belonging to their ancestor, Lajomo, who migrated from Ipole and became the first Ataoja of Osogbo and that the land in dispute was subsequently shared and granted absolutely to their lineage through Adedunhan.
The issues that arose for consideration in Suit No HOS/41/82 are thus clearly different and in no way similar to the issues in the present case. It is settled law where the issues in two suits are different, a plea of issue estoppel cannot arise – Dokubo V. Omoni (1999) 8 NWLR (pt. 616) 647, Yammedi V. Zarewa (2010) 11 NWLR (pt. 1204) 58. The judgment in Suit No HOS/41/82 cannot thus be held to create any issue estoppel in the present case. The contention of the Counsel to the Appellants on this point cannot be faulted. The first issue for determination is resolved in favour of the Appellants.
Issue Two
On the second issue for determination, i.e. the refusal of the lower court to rely on or make any reference to the judgments in Suit No HOS/69/94 and Appeal No CA/I/140/2001, Exhibits P2 and P5, in its deliberations, Counsel to the Appellants prefaced his submissions with the assertion that in Suit No HOS/69/94, the Oyero Lagada family, who the Appellants said shared boundary with them on the land in dispute, commenced an action against the Respondents for declaration of title, damages and perpetual injunction in respect of the same parcel of land claimed by the Respondents in this present suit, and said to include the land in dispute. Counsel stated that the High Court found for the Oyero Lagada family and held that the Respondents were not the owners of the land and granted all the claims of the Oyero Lagada family and that the appeal by the Respondents to the Court of Appeal was dismissed. Counsel submitted that the two judgments were valid and subsisting judgments and that having been brought to the attention of the lower court, that court was under a duty to give effect to the terms of the judgments and not to ignore them as it did.
Counsel submitted that the legal effect of the two judgments was that the Respondents did not own any portion of land in the area of the land in dispute and that the lower court ought to have similarly found. Counsel referred to the cases of Rossek V. African Continental Bank (1993) 8 NWLR (pt. 312) 382, Akinfolarin V. Akinola (1994) 3 NWLR (pt. 335) 659 and Ezewani V. Nwordi supra. Counsel submitted that had the lower court placed reliance on the two judgments, it would not have found that the evidence of traditional history of the Respondents was more probable and therefore acceptable. Counsel stated that the lower court ought to have rejected the evidence of traditional history of the Respondents on the basis of the findings in the two judgments. Counsel urged this Court to hold that the lower court was wrong in not giving effect to the judgments and to, on the basis of the judgments, reject the evidence of traditional history proffered by the Respondents.
In response, Counsel to the Respondents stated that the submissions of Counsel to the Appellants on the issue are misleading because they are predicated on the assumption that the parcel of land in dispute in Suit No HOS/69/94 is the same as the land in dispute in the present suit. Counsel stated that the parcels of land in dispute in the two suits were different and that the parties in the two suits were also different. Counsel submitted that the lower court was thus perfectly in order in not giving effect to the judgments, Exhibits P2 and P5, and that additionally there were copious references before the lower court of a pending appeal to the Supreme Court against the judgment in Exhibit P5 and that the lower court ought not to preempt the outcome of that appeal.
The contest on this second issue for determination is over the refusal of the lower court to give effect to the judgment of the High Court of Osun State in Suit No HOS/69/94 delivered on the 13th of July, 2000, Exhibit P2, and to the judgment on the appeal emanating therefrom by the Court of Appeal in Appeal No CA/I/140/2001 delivered on the 22nd of April, 2004, Exhibit P5. A look through the judgment delivered by the lower court in the present suit shows that the Court made no reference to, or any mention of, the two judgments in its deliberations. The lower completely ignored the two judgments. The two judgments were pleaded by the Appellants and were tendered in evidence. It is trite that a trial court has an abiding duty to consider and pronounce on all issues raised before it and its judgment must demonstrate a full and dispassionate consideration of all such issues. The principle of adjudication fundamental to the administration of justice is that the court is bound to consider every material aspect of a party’s case validly put forward Federal Ministry of Health V. Comet Shipping Agencies Ltd. (2009) 9 NWLR (pt. 1145) 193, Adeogun V. Fasogbon (2011) 8 NWLR (pt. 1250) 427 and Ovunwo V. Woko (2011) 17 NWLR (pt. 1277) 522.
The lower court was clearly in error in completely ignoring the two judgments comprised in Exhibits P2 and P5 in its deliberations and in making no pronouncement on them in its judgment. The duty incumbent upon this Court, in the circumstances, is to consider Exhibits P2 and P5 and to pronounce on their usefulness and their possible effect, if any, on the respective cases put forward by the parties at the trial – Kolawole V. Folusho (2009) 8 NWLR (pt. 1143) 338 and Ovunwo V. Woko supra.
Now, the uses to which a previous judgment can be put are provided for in sections 173 and 174 of the Evidence Act. Section 173 reads:
“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be a ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
Section 174 provides:
“(1) If a judgment is not pleaded by way of estoppel, it is as between the parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is or is deemed to be relevant to the issue, in any subsequent proceeding.
(2) Such a judgment is conclusive proof of the facts which it decides or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”
The provisions of section 173 of the Evidence Act have been recognized as an attempt at the codification of the operation of the doctrine estoppel per rem judicatam – The Honda Place Ltd. V. Globe Motors Ltd. (2005) 14 NWLR (pt. 945) 273, Gege V. Nande (2006) 10 NWLR (pt. 988) 256, Dike-Ogu V. Amadi (2008) 12 NWLR (pt. 1102) 650, Thomas V. Aderinokun (2008) 16 NWLR (pt. 1112) 184, Dim V. Enemuo (2009) 10 NWLR (pt. 1149) 353, Eyo V. Okpa (2010) 6 NWLR (pt. 1191) 611, Emeluwa V. Onuigwe (2011) 13 NWLR (pt. 1265) 449.
The above provisions allow a judgment to be relied on either as constituting estoppel per rem judicatam under section 173 or as a relevant fact under section 174 – Eze V. Nwaubani (2003) 7 NWLR (pt. 818) 50. Additionally, the courts have held that in a land matter, a judgment of court between same parties to present proceedings in respect of the whole or of part or portion of the same parcel of land is admissible as evidence of proof of acts of ownership on the part of the successful party and also to establish any admission made therein by the adverse party – Akpan V. Utin (1996) 7 NWLR (pt. 463) 634. Similarly, a previous judgment obtained by a party in respect of a parcel of land which is in dispute in a subsequent proceeding will properly constitute an act of ownership and possession in an action for declaration of title on the part of the successful party notwithstanding that the defendant in the subsequent suit was not a party in the previous suit – Uluba V. Sillo (1973) 1 SC 37, Chiwendu V. Mbamali (1980) 3-4 SC 31, Ajuwa V. Odili (1985) 2 NWLR (pt. 9) 710, Ijade V. Ogunyemi (1996) 9 NWLR (pt. 470) 17, Agbaisi V. Ebikorofe (1997) 4 NWLR (pt. 502) 630, Nwanwata V. Esumei (1998) 8 NWLR (pt. 653) 650, Nteogwuija V. Ikuru (1998) 10 NWLR (pt. 569) 267.
One common thread that runs through above stated provisions and case law authorities is that it is the parties to the suit leading up to the judgment or the privies of such parties that can make use of the judgment; a person not a party or a privy of a party cannot do so. It was not the case of the Appellants before the lower court that they were parties to the suit that gave birth to the two judgments, Exhibits P2 and P5. Neither was it their case that they were privies of the parties to the judgments. The parties to the two judgments were the Oyero Lagada Family and the Respondents herein. It is correct that the representatives of the Oyero Lagada family testified in favour of the Appellants in the present suit as the third and fifth plaintiff witnesses and it is also correct that Appellants and the Oyero Lagada family shared a common traditional history. Neither of these facts, however, makes the Appellants parties or privies of the parties to the two judgments. The law recognizes three classes of privies viz (i) privies in law, for example testator and executor or intestate and administrator; (ii) privies in blood, for example ancestor and heir; and (iii) privies in estate, for example vendor and purchaser, lessor and lessee – Coker V. Sanyaolu (1976) 9-10 SC 203, Omotesho V. Oloriegbe (1988) 4 NWLR (pt. 87) 225, Agumuo V. Azubuike (1999) 5 NWLR (pt. 604) 649, Gbadamosi V. Dairo (2001) 6 NWLR (pt. 708) 137, Maya V. Oshuntokun (2001) 11 NWLR (pt. 723) 62, Lawal V. Salami (2002) 2 NWLR (pt. 752) 687, Abubakar V. Federal Mortgage Bank Ltd. (2002) 4 NWLR (pt. 756) 29, Tsokwa Oil & Marketing Co. V. UTC (Nig.) Plc (2002) 12 NWLR (pt. 782) 437, Abubakar V. Bebeji Oil and Allied Products Ltd. (2007) 18 NWLR (pt. 1066) 319. The Appellants do not fit into any of these categories vis-Ã -vis the parties to Exhibits P2 and P5.
The Appellants cannot thus make any use of or rely on the judgments, Exhibits P2 and P5, in proof of their case against the Respondents in this matter. It is settled law that a plaintiff in an action for declaration of title to land must prove his case on his evidence and will fail if he does not establish his claim before the court and the fact that the defendant previously lost a claim for title to the same land in a previous suit does not help the plaintiff at all, because the onus is always on him to prove his case – Eboha V. Anakwenze (1967) NMLR 40, Elufisoye V. Alabetutu (1968) NMLR 298, Amida V. Oshoboja (1984) 7 SC 68, Gankon V. Ugochukwu Chemical Industries Ltd. (1993) 6 NWLR (pt. 297) 55, Bunyan V. Akingboye (1999) 7 NWLR (pt. 609) 31, Oshoboja V. Dada (1999) 12 NWLR (pt. 629) 102. The second issue for determination on this appeal must be resolved in favour of the Respondents.
Issue Three
This takes us to the third issue for determination, i.e. whether, on a proper evaluation of the evidence led by the parties in this matter, the learned trial Judge was right in his finding that the appellants, as plaintiffs, did not lead conclusive evidence to prove entitlement to their claims. The contention of the counsel to the appellants on this issue was two-pronged.
In the first place, counsel contended that the lower court did not properly evaluate the evidence placed before it by the parties in this matter before arriving at its decision. Counsel stated the principles governing evaluation of evidence by a trial Court and what a complaint of non-evaluation or improper evaluation of evidence entailed and he referred to cases such as Adeyeri II V. Atanda (1995) 5 NWLR (pt. 397) 512, Ahmed V. State (1997) 7 NWLR (pt. 612) 614, Edet V. Eyo (1990) 6 NWLR (pt. 605) 21 and Dakur V. Dapal (1998) 10 NWLR (pt. 571) 588. Counsel stated that the lower court based its entire findings in the matter on Exhibit D2 and the issue estoppel which the Court said emanated therefrom. Counsel submitted that Exhibit D2 cannot create an issue estoppel in this matter and that as such the findings of the lower court were perverse and not the product of a proper exercise of judicial discretion. Counsel stated that the lower court merely summarized the evidence led by the parties and did not weigh them on the imaginary scale to find out which preponderated more with credible evidence. Counsel catalogued the pieces of evidence of the Appellants that were completely ignored by the lower court and submitted that this was why the lower court arrived at its erroneous decision. Counsel submitted that in the face of such failure of the lower court to do its primary duty, this Court was in a good position to interfere and re-evaluate the evidence and he urged this Court to so do.
Counsel to the Appellants further contended that based on the respective cases made out by the parties in this matter in their pleadings and evidence led at the trial, the lower court on a proper evaluation of the evidence ought to have found in favour of the case of the Appellants. Counsel stated that there were five ways of proving title to land and that it was obvious from the respective cases that both parties relied on traditional evidence. Counsel submitted that the case of the Appellants was ably supported by the testimonies of their witness and was unscathed under cross-examination of the witnesses and was additionally fortified by two judgments, Exhibits P2 and P5, and was thus adequate to sustain their claims before the lower court. Counsel made copious references to the findings of the court in Exhibit P2 in which the Respondents herein were defendants, and as affirmed in Exhibit P5, and stated that the findings completely battered the traditional evidence relied on by the Respondents in that case, and which is the same traditional evidence being put forward in the present case. Counsel submitted that the case of the Respondents in the present case cannot thus amount to a good defence. Counsel took a voyage through the pieces of evidence led by the parties in this case and concluded by urging this Court to find and hold that the Appellants made out a credible and sufficient case to entitle them to their claims before the lower court. Counsel referred to several case law authorities in the course of his submissions.
In his response, Counsel to the Respondents stated that the primary duty of appraising and ascribing of probative value to the evidence presented by the parties was that of the trial Court which had the unique privilege of seeing and hearing the witnesses. Counsel stated that in deciding which of the set of facts given in evidence is preferable, a trial Judge is enjoined to place both sets of evidence on an imaginary scale and weigh them to see where credible evidence preponderates. Counsel referred to page 101 of the records of appeal and submitted that the lower court carried out a proper appraisal of the evidence led by the parties in this matter and ascribed due weight to the evidence and found one preferable. Counsel submitted that the findings of the lower court were not perverse and he urged this Court not to interfere with the findings.
Counsel stated that the Appellants did not present the lower court with cogent, direct and credible evidence necessary to discharge the burden of proof on them to warrant the lower court granting the reliefs sought. Counsel submitted that the Appellants woefully failed to establish their case upon a preponderance of evidence. Counsel stated that the reference by Counsel to the Appellants to Exhibits P2 and P5 was not well conceived as the parties and the subject matter in the judgments were materially different from the parties and subject matter of the present suit and also because the judgments were subject to a further appeal to the Supreme Court in Suit No SC/193/2004. Counsel urged this Court to find that the Appellants failed to present cogent evidence to sustain their claims in the matter.
The major complaint of the Appellants on this issue for determination is the non-evaluation or improper evaluation of the evidence led by the parties, particularly by the Appellants, by the lower court in arriving at its decision. A trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd. V. Ajeh (2011) 10 NWLR (pt. 1256) 574, Nacenn Nigeria Ltd. V. Bewac Automotive Producers Ltd. (2011) 11 NWLR (pt. 1257) 193, Wachukwu V. Owunwanne (2011) 14 NWLR (pt. 1266) 1.
It is the primary responsibility of a trial court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the court. The procedure is crucial in its observance. The trial court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision.
The lower court must not impair the evidence either with its personal knowledge of matters not placed and canvassed before it or by inadequate evaluation, and should endeavour to avoid vitiating the case presented by the parties through its own wrongly stated or misapplied principle of law. It must carefully examine the evidence and clearly understand the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision – Mogaji V. Odofin (1978) 4 SC 91, Adeleke V. Iyanda (2001) 13 NWLR (pt. 729) 1, Okoko V. Dakolo (2006) 14 NWLR (pt. 1000) 401, Tippi V. Notani (2011) 8 NWLR (pt. 1249) 285, Momoh V. Umoru (2011) 15 NWLR (pt. 1270) 2117.
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it has been shown that the trial court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu V. Idu (2006) 12 NWLR (pt. 995) 657, Momoh V. Umoru supra. Where a judgment of a trial court is attacked on the ground of finding or non-finding of evidence or evaluation of evidence, the Court of Appeal will seek the following (i) the evidence before the trial court; (ii) whether the trial court accepted or rejected any evidence upon the correct perception; (iii) whether the trial court correctly approached the assessment of the value on it; (iv) whether it used the imaginary scale of justice to weigh the evidence on either side; or (v) whether it appreciated, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof Egonu V. Egonu (1978) 11-12 SC 111, Daramola V. Attorney General, Ondo State (2000) 7 NWLR (pt. 665) 400, Momoh V. Umoru supra.
Reading through the judgment of the lower court, the Court summarized the testimonies of the witnesses called by the parties as well as the respective cases presented by the parties and the submissions of the Counsel on pages 1 to 16 thereof (pages 83 to 98 of the records). The deliberations of the lower court on the first claim of the Appellants for declaration of title run from pages 16 through to 19 (pages 98 to 101 of the records) and it went thus:
“Learned Counsel for the Defendants Chief Adejumo SAN relied on Exhibit ‘D2’ which he said settled the issue whether Adedunwon can benefit out of Ataoja stool. The plaintiffs in this case were the 9th, 10th, 11th, and 12th Defendants in Exhibit ‘D2’. The learned counsel for the Defendants submitted that the plaintiffs are estopped from contending to the contrary that Adedunwon is a descendant of Lajomo.
In Exhibit ‘D2’ Adio J. found as a fact on 21/1/1988 that Sogbo and Adedunwon are brothers and that they were the children Talo had for Lajomo. And if Adedunwon was a son of Lajomo, his descendants would perfectly be entitled to be considered for selection as Ataoja of Osogbo within Lajomo ruling house (see page 26 of the said Exhibit ‘D’ (sic))
In this case we are concerned with Declaration of Title to land. Both the Plaintiffs and the Defendants relied on traditional evidence to establish the root of their title to the land…
…Exhibit ‘D2’ referred to earlier in this Judgment settled the fact that Adedunwon as (sic) was a member of the royal family of Osogbo and that being so his descendants are equally eligible to own land among the area partitioned by their ancestors. The issue of Adedunwon not being a Prince and therefore not entitled to royal land including the land in dispute cannot be queried or re-opened any longer.
The issue estoppel is that once an issue has been raised and distinctly determined between the parties, then as a general rule, neither party can be allowed to fight the issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances….
The parties included the 5th and 5th defendants in Exhibit ‘D2’ who were represented by the defendants in this case while 9th, 10th, 11th and 12th Defendants in Exhibit ‘D2’ were represented by the Plaintiffs in this suit.
The issue as to whether the defendants were of royal blood was determined in Exhibit ‘D2’ which is a final judgment. It is therefore settled that both parties have access to royal land and they individually rested their claim to root of title on traditional evidence.
The plea of estoppel raised by learned counsel for the defendants Chief Adejumo SAN is hereby sustained. There is no appeal against that finding in Exhibit ‘D2’.
I find as a fact that Adedunwon is a descendant of Lajomo, therefore as members of Ataoja Chieftaincy family they are entitled to their own share of Ataoja Chieftaincy property. The Plaintiff (sic) cannot therefore be right when they testified that the land in dispute was partitioned among 5 Princes by Aina Serebu excluding the Defendants. Aina Serebu is the grandson of Lajomo, he cannot therefore divide the land which belong to Lajomo and Larooye.
The defendants (sic) version that Larooye had his own land and Lajomo had his own land being the original founders of Osogbo with a common boundary and that Lajomo divided his own between his two children i.e. Sogbo and Adedunwon is more probable and is hereby accepted. It cannot be correct to say that the defendants have no land near the land now in dispute. It is my view that the portion given to Adedunwon is the portion occupied by the defendants now.
In view of the foregoing, it could not be said that the Plaintiffs have proved their case to be entitled to the declaration sought.”
Looking at the pleadings of the Appellants and of the Respondents before the lower court, neither of them described the land in dispute as being part or portion of the Ataola Chieftaincy property or part of “royal land” and neither of them predicated their claim of ownership of the land in dispute on the fact of their being of “royal blood” or being members of the Ataoja Chieftaincy Family or being princes. These were all conjectures made by the lower court. It is trite law that the parties and the court are bound by the pleadings and a court cannot make out its own case outside the pleadings of the parties. A court should not set up for parties a case different from the one set up by the parties in the pleadings – Skye Bank Plc V. Akinpelu (2010) 9 NWLR (pt. 1198) 179 and Baliol (Nig.) Ltd. V. Navcon (Nig.) Ltd. (2010) 16 NWLR (pt. 1220) 619. It was this phantom scenario conjured up by the lower court that misled it into imagining that a finding in the judgment in Suit No HOS/41/82, Exhibit D2, created an issue estoppel against the Appellants. The lower court based its entire consideration of the cases presented by the parties on the imagined issue estoppel. This Court had found in this judgment that Exhibit D2 did not create any issue estoppel in this case against the Appellants. Thus, the basis upon which the lower court carried out the evaluation of the evidence presented by the parties did not exist. This is as good as saying no evaluation of the evidence of the parties ever took place.
On the second claim of the Appellants for trespass, the lower court on pages 19 to 21, of the judgment (pages 101 to 103 of the records) deliberated thus:
“Learned Counsel for the Plaintiff stated that the Plaintiffs are in exclusive possession of the land in dispute. He referred to the evidence proferred (sic) on behalf of the Plaintiffs that the defendants encroached on the Plaintiff’s (sic) land.
The DW2 Olaniyan Okunola testified that his ancestors have been farming on the land in dispute since over a very long time and that his family has cocoa, kolanut, cashew and palm trees on the land in dispute. He went further that the defendant’s family is harvesting the palm trees.
The DW3 Chief Odetoyinbo, a Legal Practitioner testified that he claimed compensation on behalf of the Layiokun family when the Government acquired their land for housing scheme in Osogbo.
DW4 Yekini Adesida testified that he was harvesting palm fruits for Layiokun family and that the boundary between Lakanye and Layiokun families are marked by Peregun trees. He also testified that nobody ever disturbed him from reaping palm fruits on the defendants land.
The 5th DW Alhaji Abdul Ganiyu Adewale Akala testified that the defendant’s family let out part of the land to people like: – Baba Lasisi Adesina, Yekini Adesina, Olaniyan.
According to Yoruba Custom, whoever is harvesting palm fruits on the land is the owner of such land. See AKINRINLOWO V. ANWO & Others (1959-1950) WRNLR Page 128.
In view of my finding that it could not be said that the Plaintiffs have proved their case to be entitled to declaration sought coupled with the abundant evidence from the defendants that they have been exercising acts of ownership on the land since it was granted, therefore the defendants are not trespassers on the land in dispute.”
Clearly from the above, the lower court did not consider the evidence led by the Appellants before arriving at its decision as to who was in exclusive possession of the land in dispute. It considered only the testimonies of the witnesses of the Respondents. It did not put the evidence of both sides on a scale to weigh them and see which side preponderates. The lower court was in gross violation of the procedure fashioned out to ensure justice to both parties. It did not properly evaluate the evidence of both parties before making its findings of fact. The complaint of the Appellants on improper evaluation and/or non-evaluation on the part of the lower court of the evidence led by the parties is thus very well-founded.
Counsel to the appellants has urged this Court to interfere in the evaluation process by carrying out a proper evaluation of the evidence led by the parties. Counsel to the Respondents prayed this Court not to interfere. It is settled that the proper steps for an appellate court to take where the lower court has failed to properly evaluate the evidence led by parties at the trial is either to order a retrial or carry out the evaluation of the evidence available on the records if the question of credibility of witnesses would not arise – Orianwo V. Okene (2002) 14 NWLR (pt. 786) 156, Wachukwu V. Owunwanne supra, Ovunwo V. Woko (2011) 17 NWLR (pt. 1277) 522. Where the credibility of a witness is not in point, a court sitting on appeal can evaluate such evidence. Where the conclusion is arrived at without any real controversy, such as in the case of documentary evidence, or where there is oral evidence which involves merely an admission by the adversary, or there is an unchallenged piece of evidence, an appellate court should consider itself to be in as good a position as the trial court, in so far as the evaluation of such evidence is concerned – Ebba V. Ogodo (1984) 1 SCNLR 372, Ogundepo V. Olumesan (2011) 18 NWLR (pt. 1278) 54.
The question whether an order of retrial will be made by an appellate court depends on the circumstances as the justice of a particular case my dictate. Some of such circumstances include; (a) an order of retrial should not be made where the appellate court is in a position to do justice after considering evidence that is basically documentary (b) a retrial cannot be ordered where the evidence which the parties chose to present is there and the approach of the trial court in law is there; if the approach was wrong and the decision is wrong, it should be corrected by the appellate court and the right decision given; (c) a retrial should not be ordered if the litigation will be unnecessarily prolonged; (d) a retrial would not be ordered where the order would occasion injustice to the parties; and (e) a retrial will not be ordered when the judgment of the trial court has demonstrated in full, a dispassionate consideration of the issues properly raised and heard and has reflected the result of such exercise. Where a judgment fails this test, a retrial will be ordered – Okeowo V. Migliore (1979) 11 SC 138 and Ogundepo V. Olumesan supra.
A retrial will also be ordered where a finding depends to a large extent on the credibility of witnesses. This is because an appellate court cannot, on the basis of printed record of evidence, usurp the function of the trial court, who had the advantage of seeing, watching and observing the witness in the witness box, in respect of the evaluation of the credibility of a witness – Ochiba V. State (2011) 17 NWLR (pt. 1277) 663, Ogundepo V. Olumesan supra.
In the instant case, both the Appellants and the Respondents predicated their respective assertion of ownership of the land in dispute on evidence of traditional history. The resolution of the issues joined by the Appellants and the Respondents in the matter does not depend on documentary evidence. This Court had found that the Exhibits P2 and P5 heavily relied upon by the Appellants and Exhibit D2 relied upon by the Respondents are completely irrelevant in this matter. The resolution depends largely on the evaluation of the oral evidence led by the parties. Now, it is trite that the demeanour and credibility of the witnesses do not play a part in the evaluation of oral evidence of traditional history. This is because evidence of traditional history is not assessed in the same manner and on the same principles governing assessment of evidence of primary facts; the rules governing the assessment of both sets of evidence are different.
The courts have stated over and over that, with regard to the evidence of traditional history, the demeanour of witnesses hardly comes into play in determining the truth of the matter and that it is accepted that in the course of transmission of traditional history from generation to generation, mistakes may occur without any dishonest motives whatever. The courts recognize that witnesses of utmost veracity may thus speak honestly but erroneously as to what took place a hundred or more years ago and that where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. The courts hold that in such a case, demeanour is of little guide to the truth – Aikhionbare V. Omoregie (1976) 12 SC 11, Thanni V. Saibu (1977) 2 SC 89, Ikpan V. Edoho (1978) 6-7 SC 221, Egbo V. Agbara (1997) 1 NWLR (pt. 481) 293, Okochi V. Animkwoi (2003) 18 NWLR (pt. 851) 1, Ezukwu V. Ukachukwu (2004) 17 NWLR (pt. 902) 227, Elegushi V. Oseni (2005) 14 NWLR (pt. 945) 348, Salawu V. Yusuf (2007) 12 NWLR (pt. 1049) 707, Ukaegbu V. Nwololo (2009) 3 NWLR (pt. 1127) 194. This point was lucidly explained by the Supreme Court in Morenikeji V. Adegbosin (2003) 8 NWLR (pt. 823) 612. Iguh, JSC stated at pages 638 – 639.
“A distinction must be drawn between the mode of assessment of credibility of witnesses with regard to primary facts, that is to say, facts which the witnesses actually saw and/or observed with their own eyes or knew from their own personal knowledge as against evidence of traditional history which had been handed down by word of mouth from generation to generation from the forefathers of the witnesses. With regard to the former, the bearing and demeanour of witnesses among other factors are clearly of relevance in the determination of the veracity of witnesses that testified on such primary facts. In the case of the latter, however, the demeanour of witnesses is of little guide to the truth … Thus, while a trial court may accept or reject part of the evidence of the witnesses who testified on primary facts within their personal knowledge; it may not, however, accept part and reject part of traditional history as traditional evidence cannot be treated as evidence of a witness given on matters within living memory…”
In the circumstances therefore, this Court is eminently placed to carry out a proper evaluation of the evidence led by the parties on the records and it will now proceed to do so.
The first claim of the Appellants is for a declaration of ownership of the parcel of land situate lying and being at Aigbe Farm area, off Oba Road, Osogbo and which is more particularly described and delineated in survey plan No. OS/894/98/LB.001 dated 15th of January, 1998 drawn by Olufemi Olunlade, licensed surveyor, and thereon edged Red. The survey plan was tendered as Exhibit P1. It is trite that in an action for declaration of title to land, a party claiming title to land must succeed on the strength of his case and not on the weakness of the other party’s case and where this onus is not discharged, the weakness of the other party’s case will not help him and the proper judgment is for the other party – Ukaegbu V. Nwololo (2009) 3 NWLR (pt. 1127) 194 Adu V. Gbadamosi (2009) 6 NWLR (pt. 1136) 110, Iroagbara V. Ufomadu (2009) 11 NWLR (pt. 1153) 587, Oyeneyin V. Akinkugbe (2010) 4 NWLR (pt. 1184) 265. To succeed in a claim of ownership of land, a claimant must satisfy the court as to (a) the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise; and (b) evidence establishing the nature of title claimed – Okelola V. Adeleke (2004) 13 NWLR (pt. 890) 307, Ajiboye V. Ishola (2006) 13 NWLR (pt. 998) 628 and Edohoeket V. Inyang (2010) 7 NWLR (pt. 1192) 25.
It is axiomatic in our jurisprudence that there are five recognized ways of proving ownership of land in Nigeria. These are (i) by evidence of traditional history; (ii) by documents of title which are duly authenticated in the sense that due execution must be proved; (iii) by acts of ownership such as selling, leasing, renting out or farming on all or part of land and which are numerous and positive enough and extending over a sufficient length of time to warrant the inference that the party was the true owner of the land; (iv) by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership; and (v) by proof of possession of connected or adjacent land in circumstances that render it probable that the owner of such connected or adjacent land would be the owner of the land – Egwa V. Egwa (2007) 1 NWLR (pt. 1014) 71, Yusuf V. Adegoke (2007) 11 NWLR (pt. 1045) 332, Ugwunze V. Adeleke (2008) 2 NWLR (pt. 1070) 148. A party claiming declaration of title to land need not plead and prove more than one of the five recognized methods of establishing title to land in order for him to succeed. Each of the five methods will suffice independent of the others to prove title – Lawson V. Manuel (2006) 10 NWLR (pt. 989) 569, Amayo V. Erinmwingbovo (2006) 11, NWLR (pt. 992) 669, Ebenogwu V. Onyemaobim (2008) 3 NWLR (pt. 1074) 396.
From the pleadings of the parties, both the Appellants and the Respondents relied on proof of ownership by evidence of traditional history and they pleaded different versions of traditional history. The law is that in such a situation a Court, in resolving the conflict and deciding on which of the versions to believe, should first assess the conclusiveness of the two versions of traditional history and where it finds that the two versions are conclusive and that the parties may be honest, then the Court will resort to the acts of the parties in respect of the land in dispute in recent years which is within living memory to ascertain which of the traditional history was more probable. Where only one of the versions of the traditional history is found to be conclusive by the court and the others inconclusive, recourse to recent acts become unnecessary and judgment will be for the party with the conclusive traditional history – Iriri V. Erhurhobara (1991) 2 NWLR (pt. 173) 252, Izuoji V. Ajakwara (1998) 1, NWLR (pt. 533) 255, Irolo V. Uka (2002) 14 NWLR (pt. 786) 195, Morenikeji V. Adegbosin (2003) 8 NWLR (pt. 823) 612, Okonkwo V. Okonkwo (2004) 5 NWLR (pt. 865) 87, Salawu V. Yusuf (2007) 12 NWLR (pt. 1049) 707.
Evidence of traditional history is evidence derived from tradition or reputation or statement formerly made by persons since deceased in regard to questions of pedigree, ancient boundaries, and the like, where no living witnesses can be produced having knowledge of the facts – Ewo V. Ani (2004) 3 NWLR (pt. 861) 611. A party relying on traditional history must plead and prove (1) who founded the land in dispute and exercise original acts of possession; (ii) in what manner the land was founded; and (iii) the successive persons to whom the land thereafter devolved through an unbroken chain or in such a way that there is no gap which cannot be explained and history must show how the land by a system eventually came to be owned by the party – Oyadare V. Keji (2005) 7 NWLR (pt. 925) 571, Elegushi V. Oseni (2005) 14 NWLR (pt. 945) 348, Okoko V. Dakolo (2006) 14 NWLR (pt. 1000) 401, Okegbemi V. Akintola (2008) 4 NWLR (pt. 1076) 53, Oko V. Okenwa (2010) 3 NWLR (pt. 1181) 406, Alikor V. Ogwo (2010) 5 NWLR (pt. 1187) 281.
A plaintiff who relies on evidence of traditional history as proof of title must aver in his statement of claim seriatim the genealogical tree or line of succession of the family from the cradle of its founding fathers to him and he must also lead admissible evidence in vindication or proof of the statement of claim. Unless he performs these twin procedural functions, his action is bound to fail. In other words, the pleadings of the devolution and the evidence in support must be reliable and credible otherwise the claim would fail – Dagaci of Dere V. Dagaci of Ebwa (2006) 7 NWLR (pt. 979) 382, Ibikunle V. Lawani (2007) 3 NWLR (pt. 1022) 580.
Using these principles as beacons, this Court will proceed to consider the cases presented by the parties before the lower court and it will, of course, start with the case of the Appellants, the plaintiffs before the lower court.
As stated earlier, the case of the Appellants was that the land in dispute formed part of a larger parcel of land first settled upon by one Larooye (also called Laro) and one Sogbo, both of whom jointly founded Osogbo more than two hundred years ago. It was their case that Larooye became the first Ataoja of Osogbo and that on his death, he was succeeded by Sogbo as Ataoja of Osogbo and that thereafter one Aina Serebu became the Ataoja. It was their case that during the reign of Aina Serebu as Ataoja, part of the large parcel of land founded by Larooye and Sogbo, inclusive of the land in dispute, was partitioned amongst and granted absolutely to the descendants of Larooye and Sogbo, namely: Lakanye, Gbaemu, Oluawo, Oyero Laguda and Olude. It was their case that the land in dispute formed part of the portion of land shared and granted to Lakanye and that Lakanye took possession of the land shared to him and farmed thereon until his death and that on his death, the portion of land devolved on his descendants and they listed the persons who had been head of the Lakanye branch of the family from then till date. It was the case of the Appellants that they were descendants of Lakanye and they traced the root of each of them to Lakanye.
The Appellants called seven witnesses in proof of their case, including Rafi Opoola, the original first plaintiff, and Saibu Ajagbe, the first Appellant herein and who was the second plaintiff. Both the testimony of Saibu Ajagbe (pages 39 to 43 of the records) and the testimony of Raji Opoola (pages 45 to 49 of the records) were in the terms of the case of the Appellants on the pleadings and their testimonies were not disparaged or discredited under cross-examination. They gave evidence that their ancestor founded the land in dispute and stated how it was founded and they also gave the names of the different persons who inherited the land after the death of their ancestor up till present day. They gave evidence of their genealogy from their ancestor to themselves and linking themselves to the traditional history. Their testimonies on traditional history were corroborated in material particulars by the evidence of Abidoye Akanji, the second plaintiff witness and a descendant of Gbaemu, and the evidence of Karimu Oladepo Adeniyi, the third plaintiff witness and a descendant of Oyero Lagada (pages 32 to 37 of the records). It is trite that where a court is confronted with concise and corroborating testimonies of witnesses on a point and the testimonies are not discredited, challenged or derogated from under cross examination, it should accept, rely and act on the testimonies Nasir V. Civil Service Commission, Kano State (2010) 6 NWLR (pt. 1190) 253.
Additionally, the case of the Appellants drew strength from the testimonies of the defence witnesses. The first defence witnesses admitted that the land of Gbaemu family and of the Lakanye family shared boundaries with the land in dispute while the second defence witness admitted under cross examination that Oyero Lagada family and the Lakanye family had land in the area of the land in dispute and the fourth defence witness admitted that Gbaemu family, Oluawo family and Lakanye family owned land around the area of the land in dispute. The fifth defence witness and the second defendant both admitted under cross-examination that the Lakanye, Gbaemu, Oluawo, Oyero Laguda and Olude families had land in the area of the land in dispute. These pieces of evidence support the assertion of the Appellants that the parcel of land in the area of the land in dispute was shared amongst Lakanye, Gbaemu, Oluawo, Oyero Laguda and Olude by Aina Serebu as Ataoja. It is an accepted principle that although the plaintiff succeeds on the strength of his evidence, where, however, the evidence of the defendant itself supports the case of the plaintiff and contains evidence on which the plaintiff may rely, the plaintiff shall be entitled to the evaluation of the evidence in his favour, so as to increase the strength of his case – Nwankwo V. Ofomata (2009) 11 NWLR (pt. 1153) 496, Iroagbara V. Ufomadu (2009) 11 NWLR (pt. 1153) 587, Nwokidu V. Okanu (2010) 3 NWLR (pt. 1181) 362, Gbadamosi V. Okege (2011) 3 NWLR (pt. 1233) 175.
This Court finds that the evidence of traditional history rendered by the Appellants on the ownership of the land in dispute is plausible. This Court holds that the Appellants made out a conclusive case of traditional history on the ownership of the land in dispute. This Court will now proceed to consider the conclusiveness of the evidence of traditional history of ownership of the land in dispute of the Respondents.
The case of the Respondents was that one Lajomo and Larooye were brothers of the same father and they migrated from Ipole to Osogbo and that Lajomo became the first Ataola of Osogbo and was succeeded by Larooye. It was their case that they were descendants of Lalomo through his first son called Adedunhan, and they traced the root of the second Respondent to the said Adeduhan, while the Appellants were descendants of Larooye and that both Lajomo and Larooye possessed different parcels of land in Osogbo. It was their case that during his lifetime, Lajomo divided his landed properties in different parts of Osogbo between his two sons, Adedunhan and Sogbodede and that the land in dispute formed the boundary between the parcels of land of Lajomo and Larooye and was part of the larger parcel of land shared to Adedunhan.
The Respondents called six witnesses in proof of their case. Two of the witnesses, Alhaji Abdul Ganiyu Adewale Akala, the fifth defence witness, and the second Respondent, Alhaji Adeleke Oduola Ibiloye, gave evidence on the traditional history relied upon by the Respondents (see pages 57 to 65 of the records). The fifth defence witness testified thus:
“I live at Layiokun Compound, Oja-Oba, Osogbo. I am a farmer and trader. I know the Defendants; we are of the same family. I know the land in dispute; it is our farmland at Ajeogbe along the road to Ilobu. I was born on the farm land. I know the Plaintiffs. We were together as boundary men on the farm in dispute. Peregun was used to demarcate our land from the land of the Plaintiffs by our forefathers. I have a farm land on the land in dispute. My father, a farmer, was given the land by Baba Lajomo, the 1st Ataoja in Osogbo. Laro and Lajomo are brothers and they share the land among themselves. The names of the children of Lajomo are – Adedunwon, Sogbo, Obode-Female. Lajomo gave land to Adedunwon and Sogbo because the two are of the same father and mother. Adedunwon begat Layiokun Abitan who begat Oyeyemi who begat Oladunjoye who begat Adeyanju Akala who begat myself – Alhaji Abdul Ganiyu Adeyanju Akala. The descendants of Sogbo are Gbaemu, Oluawo ….”
The evidence of the second Respondent went thus:
“I live at Oke Ola, i.e. No. 13, Adedunwon Street, Osogbo. I am a trader and contractor. I know the Plaintiffs. I also know the land in dispute….. I have heard of Laoge. The children of Laoge are Lajomo and Larooye. They were formerly living at Ipole and after they migrated to Osogbo, Lajomo was then the 1st Ataoja. Lajomo begat Adedunwon, Sogbo and Obode (female). Obode got married to an Oyo man, she begat a child for him before she died. The children of Adedunwon are Layiokun, Lagada Eniku, Aisiola. The children of Sogbo are Aina Serebu who begat Oyelakin and Adeyinka. Aina Serebu begat Legbeku. Children of Oyero are Adebola and Adedotun Alabi. Adebola begat Ibiloye and Oyedele. Ibiloye begat Adebiyi Gbadamosi and myself… The ancestors of the Defendants are Lajomo and Layiokun. I have heard of Larooye. Larooye and Lajomo are of the same father and mother. Larooye and Lajomo shared the land at Osogbo among themselves. Lajomo shared his land among his children i.e. Adedunwon and Sogbo. The land given to Adedunwon is the land now in dispute. Sogbodede shared the land granted to him among his children i.e. Aina Serebu and Oluawo. In 1933 when Kolawole was Ataoja, our land was acquired which is now GRA. The Western Region Government also acquired the land at former Ministry of Agriculture, Osogbo. As at the first time we were paid compensation. Since Lajomo gave Adedunwon land they have been farming on the land…”
It is very apparent from the above summary of the case of the Respondents and the testimonies of their witnesses that the case presented by the Respondents, both on their pleadings and in the testimonies of their witnesses, had major deficiencies. Nowhere, either in the pleadings or in the testimonies of the witnesses, did the Respondents state who founded the land in dispute and how the land was founded. All they stated was that Lajomo and Larooye were the first and second Ataoja of Osogbo after migrating from Ipole to the present site of Osogbo and that Lajomo had his land separate from that of Larooye and that the land in dispute was part of the land belonging to Lajomo. Nothing was said of how Lajomo came to own his said land; was it by first settlement, was it by conquest or otherwise? It is settled law that where a party relies on title based on traditional history, his pleadings must show in what manner the land was founded; whether it was virgin land and was first cleared and settled on by the party’s ancestors – Fatoyinbo V. Osadeyi (2009) 16 NWLR (pt. 1168) 605, Oko V. Okenwa (2010) 3 NWLR (pt. 1181) 406, Orlu V. Gogo-Abite (2010) 8 NWLR (pt. 1196) 307. It is incumbent on the party to plead and prove the actual traditional history of evidence of founder of the land and how it was founded, that is to say, whether by conquest, by settlement on the land if it was vacant initially or by deforestation. Possession simpliciter is insufficient Oyedeji V. Oyeyemi (2008) 6 NWLR (pt. 1084) 484, Nwakorobia V. Nwogu (2009) 10 NWLR (pt. 1150) 553, Fayemi V. Awe (2009) 15 NWLR (pt. 1164) 315, Nwokidu V. Okanu (2010) 3 NWLR (pt. 1181) 362, Jiya V. Awumi (2011) 4 NWLR (pt. 1238) 467.
Secondly, neither in pleadings nor in testimonies of the witnesses did the Respondents state the successive persons to whom the land in dispute devolved after it was allegedly shared to Adedunhan through an unbroken chain or in such a way that there was no unexplained gap and they did not show how the land by a system eventually came to be owned by the Respondents. It is trite that where a party’s case depends on traditional history, it is of utmost importance that the evidence of traditional history tendered must not only make a consistent sense but it must also affirmatively link the claimant with the traditional history relied on Owoade V. Omitola (1988) 2 NWLR (pt. 77) 413, Okeke V. Ezike (1993) 4 NWLR (pt. 290) 751, Dike V. Okoledo (1999) 10 NWLR (pt. 623) 359, Fatoyinbo V. Osadeyi (2009) 16 NWLR (pt. 1168) 605.
The evidence of traditional history of the Respondents cannot thus be said to be conclusive. It is settled that an inconclusive and deficient evidence of traditional history cannot be plausible and credible and definitely cannot sustain a claim for ownership of land – Ali V. Salihu (2011) 1 NWLR (pt. 1228) 227, Jiya V. Awumi (2011) 4 NWLR (pt. 1238) 467. It must be stated that the Respondents pleaded and led evidence of copious and various acts of possession and ownership that they allegedly carried out on the land in dispute. These acts cannot, however, avail their case of ownership of the land. This is because enjoyment of a land in dispute cannot precede title nor can it indicate same – Registered Trustees of the Apostolic Faith Mission V. James (1987) 3 NWLR (pt. 61) 556, Nwaeseh V. Nwaeseh (2000) 3 NWLR (pt. 649) 391, Yusuf V. Adegoke (2007) 11 NWLR (pt. 1045) 332, Olubodun V. Lawal (2008) 17 NWLR (pt. 1115) 1. Thus, acts of ownership and possession can only properly be considered, in such circumstances, where the root of title pleaded is established by cogent and convincing evidence Orlu V. Gogo-Abite (2010) 8 NWLR (pt. 1196) 307, Odunukrve V. Ofomata (2010) 18 NWLR (pt. 1225) 404, Gbadamosi V. Okege (2011) 3 NWLR (pt. 1233) 175, Ogunleye V. Jaiyeoba (2011) 9 NWLR (pt. 1525) 339. In Oyadare V. Keji (2005) 7 NWLR (pt. 925) 571 the Supreme Court held that where a party claiming ownership of land pleads traditional history and fails to prove his root of title by that means, he cannot turn round to rely on acts of ownership and possession to prove his title to the land because once the foundation of his title, the traditional history, has failed, there would be nothing on which to found acts of ownership.
This Court finds that it was the Appellants that led conclusive evidence of traditional history of the ownership of the land in dispute. It is trite that where a claimant pleads and gives evidence of traditional history which is probable and there is no competing or conflicting evidence of this by the defendant, and the evidence is accepted by the trial court, the claimant is entitled to his claim for declaration of title on that evidence alone – Olujebu of Ijebu V. Osho, the Eleda of Eda (1972) 5 SC 143 at 151, Alade V. Awo (1975) 4 SC 215 at 228, Akhionbare V. Omoregie (1976) 12 SC 11, at 27, Alli V. Aleshinloye (2000) 6 NWLR (pt. 660) 177 Ariolu V. Ariolu (2011) 11 NWLR (pt. 1258) 288. The Appellants are thus entitled to their first claim for declaration of title to the land in dispute.
The Appellants, before the lower court, also claimed in trespass and they sought damages for trespass and an order of perpetual injunction to restrain further trespass. Trespass, in relation to property law, generally means to interfere with another person’s property; to enter unlawfully upon another person’s property or to encroach or intrude on another person’s property. It is a word of very large significance and signification, particularly in the determination of the specific acts of trespass on the part of the trespasser – Onagoruwa V. Adeniji (1993) 5 NWLR (pt. 293) 317. In legal theory, the position is that every unlawful or unauthorized entry into land in possession of another is trespass for which an action in damages lies even if no actual damage is done to the land or any fixture thereon – Adesanya V. Otuewu (1993) 1 NWLR (pt. 270) 414, Anyabunsi V. Ugwenze (1995) 6 NWLR (pt. 401) 255. In other words, trespass, in relation to landed property means an unjustified intrusion or interference with possession of land – Echere V. Ezirike (2006) 12 NWLR (pt. 994) 386 and Osu V. Nwadialo (2009) 12 NWLR (pt. 1155) 286.
A claim in trespass postulates that the plaintiff is in possession of the land in dispute at the time of the trespass since the very essence of trespass per se is injury to possession – Ige V. Fagbohun (2001) 10 NWLR (pt. 721) 468, Madumma V. Jambo (2001) 15 NWLR (pt. 736) 461, Ajikanle V. Yusuf (2008) 2 NWLR (pt. 1071) 301. Both the Appellants and the Respondents claimed in their respective pleadings and in the testimonies of their witnesses to have been in possession of the land in dispute. The law is that where two parties are both on a piece or parcel of land, claiming possession thereof, the possession being disputed, trespass will be at the suit of the one who can show that title to the land is in him – Provost, Lagos State College of Education V. Edun (2004) 6 NWLR (pt. 870) 4 6, Aminu V. Ogunyebi (2004) 10 NWLR (pt. 882) 457, Adedipe V. Theophilus (2005) 16 NWLR (pt. 951) 250. Similarly, when the issue is as to which of two claimants has a better right to possession of a parcel of land in dispute, the law will ascribe such possession to the person who proves better little – Ashiru V. Olukoya (2006) 11 NWLR (pt. 990) 1, Adanyi V. Anwase (2006) 12 NWLR (pt. 993) 183, Farajoye V. Hassan (2006) 16 NWLR (pt. 1006) 463, Welle V. Bogunioko (2007) 6 NWLR (pt. 1029) 125. This is predicated on the presumption that the person having title to the land is in possession – Ojomo V. Ibrahim (1999) 12 NWLR (pt. 631) 415, Okoko V. Dakolo (2006) 14 NWLR (pt. 1000) 401. This Court having found that it is the Appellants that made out a credible case of ownership of the land in dispute, they will be presumed to be the ones in possession of the land.
The case of the Appellants in trespass was that after the sharing and absolute grant of the land in dispute to the Lakanye, Lakanye and his descendants remained in lawful and undisturbed use and possession of the land until sometime in 1994 when the Respondents started laying claims to the land in dispute and started harassing them with the Police. It was their case that the Respondents instigated the Police to arrest a member of the family, one late Alhaji Lasisi Omoleye, along with other persons they employed to crop their palm trees on the land in dispute and that these persons were eventually charged to Court in Charge No MOS/266C/94 and they were subsequently discharged and acquitted. It was their case that the Respondents had since that time been using thugs and other violent means to prevent them from going into the land in dispute and that in fact they had to apply for an order of the lower court to enable them carry out a survey of the land in dispute in 1997 and the Counsel to the Respondents gave an undertaking to the Court on the 21st of April, 1997 that their surveyor would not be disturbed on the land.
Mr. Raji Opoola, the original first plaintiff, and Saibu Ajagbe, the first Appellant herein and who was the second plaintiff, as well as one Samiatu Sule who gave evidence as the fourth plaintiff witness testified in proof of these averments and their evidence were in the terms of the case of the Appellants on the pleadings. The Appellants tendered the judgment of the Magistrate Court in Charge No MOS/266C/94 as Exhibit P4.
The Respondents admitted in their pleadings that they caused members of the Appellants’ family and their workers to be arrested on the land in dispute by the Police for harvesting palm fruits thereon and that the arrested persons were prosecuted and subsequently discharged and acquitted. They did not deny, challenge or contradict the assertion that the Appellants needed an order of Court and an undertaking of Counsel to the Respondents to enter and survey the land in dispute in 1997. They admitted that they went unto the land in dispute and they pleaded and led evidence through the second and fifth defence witnesses and the second Respondent of copious acts of possession which they carried out on the land in dispute.
It must be stated that the Respondents admitted these facts in proof of their claim of ownership of the land. The law is that where a party alleges acts of possession carried out on a piece of land in dispute in support of a claim of title to the land and he fails to prove the title pleaded and claimed, the acts of the party on the land cease to be acts of possession and they automatically become acts of trespass and will sustain a finding of trespass against the party – Adebayo V. Ighodalo (1996) 5 NWLR (pt. 450) 507, Egbuta V. Onuna (2007) 10 NWLR (pt. 1042) 298, Ajikanle V. Yusuf (2008) 2 NWLR (pt. 1071) 301. The case of the Respondents on their pleadings and in the testimonies of their witness thus affirmed the case of the Appellants in trespass.
The claim of the Appellants in trespass thus succeeds without more and they are automatically entitled to the claim for damages – Olorunfemi V. Asho (1999) 1 NWLR (pt. 585) 1, Ogunyombo V. Ookoya (2002) 16 NWLR (pt. 796) 224 and Egwa V. Egwa (2007) 1 NWLR (pt. 1014) 71. Looking at the facts of this case and the activities of the Respondents on the land in dispute, it is the view of this Court that damages in the sum of N10, 000.00 should assuage the Appellants for the trespass of the Respondents.
On the prayer for perpetual injunction to restrain further trespass, it is trite that injunction is an equitable relief issued or granted by a court at the suit of a party complainant, directed to a party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act, or to permit his servants an agents to do some act, which he is threatening or attempting to commit or restraining him in the continuance thereof, such act being unjust and inequitable, injurious to the claiming and not such as can be adequately redressed by an action in law. It is a judicial process operating in personam, and requiring the person to whom it is directed to do or refrain from doing a, particular thing – Nigeria Telecommunications Ltd. V. ICIC (Directory Publishers) Ltd. (2009) 16 NWLR (pt. 1167) 356.
It is trite that where a party claims a relief of perpetual injunction, it is sufficient if the evidence led shows a right or interest the court could protect by that order and an actual, threatened or likely infringement or violation of that right or interest by the other party – Biyo V. Aku (1996) 1 NWLR (pt. 422) 1, Rector, Kwara Polytechnic V. Adefila (2007) 15 NWLR (pt. 1056) 42. It has been held that the court can, and should, grant the order of injunction as a consequential relief to protect the right of the party adjudged to be in possession of property, even where it is not claimed by the claimant – Briggs V. The Chief Lands Officer of Rivers State of Nigeria (2005) 12 NWLR (pt. 938) 59, Enugu State Civil Service Commission V. Geofrey (2006) 18 NWLR (pt. 1011) 293, Amori V. Iyanda (2008) 3 NWLR (pt. 1074) 250. This Court having found that the Appellants are the owners of the land in dispute and are thus deemed to be the persons in possession of the land, the prayer for perpetual injunction succeeds and will be granted.
In conclusion, this appeal succeeds. The judgment of the Osogbo Judicial Division of the High Court of Osun State and delivered in Suit No HOS/60/95 on the 26th of July, 2005 is hereby set aside. Judgment is entered in favour of the Appellants in the following terms:
i. It is hereby declared that the Appellants are the persons entitled to the statutory right of occupancy to all the piece or parcel of land situate lying and being at Aigbe Farm area, off Oba Road, Osogbo and which is more particularly described and delineated in survey plan No. OS/894/98/L8.001 dated 15th of January, 1998 drawn by Olufemi Olunlade, licensed surveyor, and thereon edged Red.
ii. The Appellants are awarded the sum of N10, 000.00 as damages for trespass committed by the Respondents and their agents on the said land in dispute from 1994 until now.
iii. An order of perpetual injunction is hereby made restraining the Respondents, their servants, agents and/or privies and anybody claiming through them from committing further acts of trespass on the said land.
iv. The Appellants are awarded the costs of this appeal assessed at N50, 000.00 against the Respondents.
These shall be the orders of the Court.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother ABIRU, JCA just delivered. His Lordship has exhaustively considered and ably resolved the issues in contention in this appeal. I agree with the reasoning and conclusion that the appeal is meritorious and ought to be allowed. I accordingly allow it and abide by the consequential orders contained in the lead judgment including the order for costs.
CHIMA CENTUS NWEZE, J.C.A.: I had the privilege of reading in advance the draft of the leading judgment which noble Lord, Abiru JCA, just delivered now. I agree with the methodical reasoning and the compelling conclusion. The leading judgment has, in my humble view, dealt admirably with the cassus belli in this appeal. His Lordship, in a most adroit manner, has examined the leading authorities on the issues canvassed by the parties in this appeal. It would, therefore, serve no useful purpose embarking on further voluble comments on them. With humility, I, rather, prefer to adopt my Lord’s reasoning and conclusion in the leading judgment. I find the appeal meritorious. I, equally, abide by His Lordship’s consequential orders contained in the leading judgment.
Appearances
Mr. Ayo LaogunFor Appellant
AND
Mr. J. D. RufaiFor Respondent
