TROPICAL CULTURE LTD & ANOR v. AKINOLA
(2020)LCN/15606(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, December 04, 2020
CA/IB/424/2018
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. TROPICAL CULTURE LIMITED 2. PRINCE RAIMI RAJI (For and On Behalf of Himself and The Entire Members Of The Aagba Chieftaincy Family Of Aagba In Surelere Local Government Area Of Oyo State) APPELANT(S)
And
H.R.M. OBA SOLOMON AKINOLA (OLOKO OF OKO) (For and On Behalf of Himself as Well As The Entire Members Of Oloko Of Oko Chieftaincy Family Of Oko In Surulere Local Government Area Of Oyo State) RESPONDENT(S)
RATIO:
BURDEN TO PLEAD TO ESTABLISH THE ROOT OF TITLE TO A LAND IN DISPUTE
Now, is the law that, a Plaintiff or Claimant who predicates his Claim of title to land on traditional history, has the burden to plead and lead credible evidence to establish the root of such title to the land in dispute. Such evidence to be adduced must show how the title to the land devolved to him without any missing links in the genealogy or in the chain from the original founder of the land to his progenitors and eventually to him. HARUNA SIMON TSAMMANI, J.C.A.
TITLE TO LAND AND ENTITLEMENT TO POSESSION
It is the law that where a claim for declaration of title to land is coupled with a claim of damages for trespass and injunction, the law ascribes possession to the party who is able to prove a better title. Since trespass is an affront against possession the party who is able to establish a better title will have title declared in his favour by the Court and therefore entitled to possession. See Akinterinwa & Anor v. Oladunjoye (2000) 6 NWLR (pt.659) 92; Monkom & Ors v. Odili (2010) 2 NWLR (pt.1179) 419 and Ufomba & Anor v. Ahuchaogu & Ors (2003) 8 NWLR (pt.821) 130. HARUNA SIMON TSAMMANI, J.C.A.
COUNTER CLAIM AS AN INDEPENDENT ACTION
I only wish to emphasise that the law is trite that a Counterclaim is a cross-action and not a mere defence to the Claimant’s claim. It is an independent action and not part of the original action. The two causes are however tried together for convenience and to avoid multiplicity of actions A Counter- Claimant would succeed only on the strength of his case and not the weakness of the defence. He must prove his counter-claim to the satisfaction of the Court to be entitled to Judgment. See IGE VS. FARINDE (1994) 7 NWLR (PT. 354) 42; GOWON VS. IKE-OKONGWU (2003) 6 NWLR (PT 815) 38; AIR VIA LTD VS ORIENTAL AIRLINES LTD (2004) 9 NWLR (PT. 878) 298.FOLASADE AYODEJI OJO, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court of Justice sitting at Orile-Igbon in the Oyo Judicial Division of Oyo State, delivered by M.O. Ishola, J on the 25th day of June, 2018 in Suit No: HOI/7/2015.
By a Further Amended Writ of Summons filed on the 05/3/2018 and a Further Amended Statement of Claim also filed on the 05/3/2018, the Appellants/Cross-Respondents who were the Claimants in the Court below, sought some declaratory and injunctive reliefs against the Defendants/Respondents/Cross-Appellants. The claims of the 1st Plaintiff/Appellant are as follows:
(i) A DECLARATION that the 1st Claimant is the Assignee and person entitled to the Statutory Right of Occupancy and interest in all that piece or parcel of land situate, lying and being at Aagba Chieftaincy Family Land, Aagba Village, Surulere Local Government, Oyo State, more particularly described as the Land Area verged Blue in Survey Plan No. OY/0245/2014/34D prepared by Adetunji Adeleke (licensed surveyor) Registered No.02450 of 15th December, 2014.
(ii) A DECLARATION that the several acts of disturbance, hindrance, threats, impediments, violence and by whatsoever means and howsoever described of the Defendant by himself, agents, servants, privies, workman and howsoever described preventing the 1st Claimant from entering as well as undertaking peaceable possession and use of the area of land so described and/or by his entry to the land to cause the eviction and/or ejection of the 1st Claimant, agents, servants and/or privies therefrom amounts to trespass.
(iii) AN ORDER directing the Defendant and his privies jointly and severally to pay the sum of N555,231,500 (Five Hundred and Thirty-One Million, Two Hundred and Thirty-One Thousand, Five Hundred Naira) to the 1st Claimant on the footing of Special Damages occasioned by the acts of trespass of the Defendant and his privies on the said land.
(iv) AN ORDER directing the Defendant and his privies jointly and severally to pay the sum of N500,000,000 (Five Hundred Million Naira) to the 1st Claimant on the footing of General and Aggravated Damages occasioned by the acts of trespass of the Defendant and his privies on the said land.
(v) AN ORDER directing the Defendant and his privies jointly and severally to pay to the 1st Claimant interest on damages on (C) and (D) above at the rate of Ten (10%) percent per annum from the date of judgment until the judgment liabilities are finally liquidated and/or satisfied.
(vi) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant by himself, privies, agents, workers, workmen or howsoever described from trespassing or in any way interfering with the 1st Claimant’s peaceable enjoyment and use of the said land.
The Claims of the 2nd Appellant/Cross-Respondent as 2nd Claimant in the trial Court are as follows:
(a) A DECLARATION that the 2nd Claimant is entitled to the Customary Right of Occupancy and interest in all that piece or parcel of land situate, lying and being at Aagba Chieftaincy Family Land, Odo-Aro, Aagba Village, Surulere Local Government, Oyo State more particularly described as Land Area verged Red in Survey Plan No: OY/0245/2014/34D prepared by Adetunji Adeleke (licensed surveyor) Registered No.02450 of 15th December, 2014.
(b) A DECLARATION that the Letter dated 5th July, 2014 directing the Defendant to eject and/or evict all the customary tenants through the 2nd Claimant from the entire piece or parcel of land verged Red on the Survey Plan No: OY/0245/2014/34D dated 15th December, 2014 is illegal, unlawful, null and void and of no effect.
PARTICULARS OF ILLEGALITY AND UNLAWFULNESS
(i) That the Defendant has no further interest both legal and equitable on the portion of land verged red as contained in Survey Plan No: OY/0245/2014/34D of 15th December, 2014 by reason of the dismissal of the Defendant’s Counter Claim in Suit No: HOG/35/2001 which judgment still subsists, separate and distinct from the 2nd Claimant’s Writ of Summons in the same suit which was struck out on Appeal.
(ii) The Appeal of the Defendant was struck out in its entirety along with the 2nd Claimant’s Writ of Summons of Suit No: HOG/35/2001 by the Court of Appeal.
(c) A DECLARATION that the acts of the Defendant, his agents, servants, privies and workman entering the area of land verged Red as contained on Survey Plan No: OY/0245/2014/34D of 15th December, 2014 prepared by Adetunji Adeleke, a licensed surveyor to eject and/or evict the 2nd Claimant, his agents, servants, privies or workmen amounts to trespass.
(d) AN ORDER directing the Defendant and his privies jointly and severally to pay the sum of N12,000,000.00 (Twelve Million Naira) to the 2nd Claimant for the loss of about 2,000,000 bunches of ripe palm fruits valued at the rate of N600.00 per bunch.
(e) General damages of N25,000,000.00 (Twenty Five Million Naira) against the Defendant.
(f) AN ORDER OF INJUNCTION restraining the Defendant by himself, privies, agents, workers, workmen or howsoever described from trespassing, or in any way interfering with the 2nd Claimant’s peaceable enjoyment and use of the said land.
The Defendant/Respondent/Cross-Appellant filed a Statement of Defence which was severally amended, with the last amendment being the 5th Amended Statement of Defence filed on the 05/12/2017. By paragraph 18 of the 5th Amended Statement of Defence, the Respondent/Cross-Appellant, Counter Claimed as follows:
(a) A declaration that the Deed of Assignment dated 12th September, 2013 made between the 1st & 2nd Claimant is void for being caught by the doctrine of lis pendis (sic), the land in dispute haven (sic) been sold during the pendency of Appeal No: CA/I/131/09, Between OBA ELIJAH ADEBAYO ADARAMOLA (The Oloko of Oko) (for and on behalf of himself as well as the entire members of Oloko of Oko Chieftaincy Family of Oko in Surelere v. CHIEF THOMAS AJIBOYE OLAJOJU (The Alaagba of Aagba) (for and on behalf of himself and the entire members of the Aagba Chieftaincy Family of Aagba, Surelere Local Government Area of Oyo State) which case was on the Land in dispute on same.
(b) A declaration that Suit No: HOG/35/2001 haven (sic) been declared a nullity by the Court of Appeal in Appeal No: CA/I/131/09, all rights acquired under the judgment of the Ogbomosho High Court by the 2nd Claimant abates.
(c) An Order of this Honourable Court setting aside the Deed of Assignment dated 12th September, 2013 between the 1st Claimant and the 2nd Claimant Registered as No.39 at page 39 in Volume 3699 of the Deed Registry in the office at Ibadan.
(d) Forfeiture of the customary tenancy of the 1st Claimant on portions of OLOKO land granted to them outside the land in dispute.
(e) A declaration that the defendants are the people entitled to a statutory declaration of occupancy in respct of all that piece and parcel of land situate, lying being at OKO more particularly shown in Plan Number OY/0245/2002/11D and prepared by Surveyor Adeleke on 15th December, 2014 and Plan No. OY/175/2004/10/1 dated 21/1/2004 prepared by Surveyor R.A. Laniyi.
(f) Perpetual Injunction restraining the Claimants, their servants, agents, privies or anybody claiming frMDom them or through them from further trespassing on the Claimant’s land situate, lying and been (sic) at Oko, more particularly described in Survey No: OY/175/2004/LO.1 prepared by Surveyor R.A. Laniyi dated 21/01/2004 & Survey No: OY/0245/2002/11D dated 15th December, 2014 prepared by Surveyor Adetunji Adeleke.
(g) General Damages of N100 Million jointly and severally from the Claimants for their trespass on the defendant’s land.
The parties also complied with the Rules of the Court below when they frontloaded the Written Statements of their witnesses and the documents they would rely on at the trial.
The brief facts of the case leading to this appeal has been succinctly put by the learned trial Judge in the judgment at pages 344 line 19 – 345 line 15 of the record of appeal as follows:
“The summary of the Claimants’ case as garnered from the pleadings is that the 1st Claimant being a company carrying out the business of mechanized farming and agriculture, desirous of acquiring a vast tract of land for her business approached the 2nd Claimant who is a representative of Aagba Village in Surulere Local Government Area of Oyo State who claimed to be the owner of a vast tract of land measuring 2096.12 Hectares. The 2nd Claimant showed the officials of the 1st Claimant, the Judgment of High Court, Ogbomoso in Suit No. HOG/35/2001 delivered on 22nd February, 2008 as proof of ownership of the land. The Officials of the 1st Claimant in addition to the judgment also made enquiry from boundary men of the 2nd Claimant on the veracity of the 2nd Claimant’s ownership of the land and the boundary men attested to the good title of the 2nd claimant. Consequently, the 1st Claimant bought 500 acres of land for the sum of N15 Million from the 2nd Claimant and commenced operations towards the establishment of an Oil Palm Plantation and planting of cassava and maize on the land. Not long thereafter, precisely on 5th July, 2014 the 1st Claimant received a letter from the Solicitors to the Defendant stating that the land belonged to the Defendant and the following day, that is 6th July, 2014 the Defendant, his agents and workmen evicted the 1st Claimant and its agents and workmen from the land. Hence, the Claimants instituted this suit.
The case for the Defendant is predicated on the fact that the decision in Suit No. HOG/35/2001 delivered by Ogbomosho High Court was declared a nullity and struck out by the Court of Appeal in Appeal No. CA/I/131/2009 in its judgment delivered on 27th June 2014.”
At the trial, the parties called witnesses who adopted their Written Statements on Oath and were cross-examined. The Claimants/Appellants/Cross-Respondents called eight (8) witnesses and tendered Exhibits “P1” to “P12”. The Defendant/Respondent/Cross-Appellant called eleven (11) witnesses and tendered Exhibits “D1” to “D4”. At the close of evidence, the parties filed and exchanged Written Addresses and in a considered judgment delivered on the 25/6/2018, the learned trial Judge dismissed the Claimants’/Appellants’ case but gave judgment for the Defendant/Respondent in part. Displeased with the judgment, the Plaintiffs/Appellants have filed this appeal. The Defendant/Respondent cross-appealed.
The Notice of Appeal consisting of fourteen (14) Grounds of Appeal was filed on the 24/8/2018. The parties then filed and exchanged Briefs of Arguments. The Appellants’ Brief of Arguments was filed on the 28/5/2019 but deemed filed on the 30/5/2019. Five (5) issues were formulated therein for determination as follows:
1. Whether or not the Appellants linked or related the contents of the documents tendered as exhibits by them to their case before the Court. [Ground 1].
2. Whether or not the learned trial Judge was right in dismissing the 2nd Appellant’s claim for customary right of occupancy to the land in dispute without properly considering his traditional evidence and Exhibits “P11A” – “F”, “P12A” – “D” and “D3” which substantially establish and/or support the 2nd Appellant’s title to the land in dispute and His Lordships refusal to grant damages and injunction against the Respondents for their acts of Trespass. [Grounds 2, 3, 4, 5 and 9].
3. Whether or not the learned trial Judge was right when he set aside the 1st Appellant’s Deed of Assignment tendered as Exhibit “P6” and His Lordship’s refusal to grant damages and injunction against the Respondent as claimed by the 1st Claimant. [Grounds 6 and 7].
4. Whether or not the learned trial Judge was right when he held that the Counter-Claim of the Respondent which was dismissed by the Lower Court in Suit No. HOG/35/2001; Exhibit “P4” and “D1” respectively was not conclusive and/or constitute estoppel per Rem Judicata despite the Court of Appeal decision on Appeal No. CA/I/131/09. [Grounds 10, 11, 12 and 13].
5. Whether or not the learned trial Judge was right in awarding N100,000.00 (One Hundred Thousand Naira) as costs in favour of the Respondent and against the Appellants. [Ground 4].
The Respondent’s/Cross-Appellant’s Brief of Arguments was dated and filed on the 27/5/2019 but deemed filed on the 27/2/2020. Therein, the Respondent/Cross-Appellant formulated only one (1) issue for determination as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“Considering the state of the pleadings and evidence placed before the Court below, whether the learned trial Judge was right in his consideration of Appellants’ case.”
The Appellant also filed an Appellants Reply to the Respondent’s Brief of Arguments on the 02/3/2020. Before I proceed, I need to remind myself that the Respondent filed a Cross-Appeal. I shall return to it after considering the main appeal.
I have also considered the issues raised by the parties in the main appeal viz-a-vis the facts of the case and the law. Upon a careful consideration, I am of the view that the issues raised by the Appellants will suffice for the determination of this appeal. However, I propose to consider issues 1, 2 and 3 together while issues 4 and 5 shall each be considered separately. I now proceed with issues 1, 2 and 3.
Now on issue one (1), R.A. Ogunwole of learned Senior Advocate for the Appellants contended that the Appellants had pleaded all the documents they would rely on at the trial in paragraph 10(1) – (9) of the Further Amended Statement of Claim. That at the Pre-Trial Conference, the documents were all admitted by consent as Exhibits “P1” & “P1A”, “P2A” – “P2L”, “P3”, “P4”, “P5”, “P6”,“P7” ,“P8”, “P9”, “P10”, “P11A” – “F” and “P12A” – “D” respectively. That the eight (8) witnesses who testified for the Appellants frontloaded the Written Statements on Oath as required by the Civil Procedure Rules of the trial Court. Furthermore, that the documents admitted in evidence were referred to in the Written Statements on Oath of those witnesses. Learned Senior Counsel then submitted that, sadly, none of those documents was used by the trial Court before coming to a decision against the Appellants. That, this is moreso when reference was made by the witnesses in their Written Statements on Oath. The cases of GE Int’l Operations Ltd v. Q-Oil & Gas Services (2015) 1 NWLR (pt.1440) 244; Awuse v. Odili & 327 Ors (2005) 16 NWLR (pt.952) 416; Lumatron Nigeria Limited & Anor v. First City Monument Bank Plc (2016) LPELR – 41409 (CA) and Terab v. Lawan & 2 Ors (1992) 3 NWLR (pt.231) 569 at 592 were cited in urging us to hold that, if the learned trial Judge had dutifully made use of the documents, he would have come to a different decision in favour of the Appellants. The cases of Alechenu v. University of Jos (2015) 1 NWLR (pt.1440) 333 and Anyanwu v. Uzowuaka (2009) 13 NWLR (pt.1159) 445 were also cited in support.
On issue two (2), learned Senior Counsel for the Appellants contended that as pleaded in paragraphs 10(h)(i) – (x) of the Further Amended Statement of Claim, the Appellants relied on traditional evidence in proof of their claims. That the facts of traditional evidence were pleaded in paragraphs 10(J), (K), (L), (M) and (O) of the Further Amended Statement of Claim. That it is trite law, as postulated in several cases, such as Matanmi & 2 Ors v. Dada & Anor (2013) 7 NWLR (pt.1353) 319, etc, there are five (5) ways of proving title to land in Nigeria. That, the learned trial Judge approbated and reprobated when, on the one hand he refused to ascribe probative value to the documents tendered by the Appellants which are in support of the Appellants’ case on the ground that they were dumped but turned around to ascribe probative value to the documents in order to use them against the Appellants.
Learned Senior Counsel went on to submit that, it is the law that a party who relies on traditional history in proof of title to land must plead and lead evidence to show the root of his title, such as, how the land descended to him over the years. The case of Iheanacho & 6 Ors v. Chigere & 3 Ors (2004) 17 NWLR (pt.901) 130 at 148 was cited in support. That, the root of title of the 2nd Appellant to the land in dispute has been demonstrated by the traditional history of the 2nd Appellant which is divided into the Pre-Fulani War era and the Post-Fulani War era. It was further submitted that the pleadings and evidence of the CW1, CW2, CW7 and CW8 and Exhibits “P11A” – “F”, “D3” and “P12A” – “D” are relevant in establishing the traditional history of the 2nd Appellant’s title to the land in dispute.
Learned Senior Counsel for the Appellant also contended that, the learned trial Judge misconstrued the case of the 2nd Appellant when he restricted his findings only to the aspect of the testimony of CW8 relating to the settlement of the 2nd Appellant on the land in dispute before the Fulani War while ignoring the evidence relating to the grant of the land in dispute to him (2nd Appellant) by Aresapa after the Fulani War. That, the evidence of the grant of the land in dispute to the 2nd Appellant by the Aresapa after the Fulani War was stated in paragraphs 3(ix), (x), (xi), (xiii and (xviii) of the Further Witness Statement on Oath of CW8. That, the fact that the 2nd Appellant was granted the land in dispute by Aresapa was further demonstrated by Exhibits “P11A – “F” and “DW3”. It was therefore submitted that, the trial Court ought to have accepted the evidence of CW8 on the fact that the land in dispute was granted to the 2nd Appellant by Aresapa after the Fulani War even if it rejected the testimony of CW8 on the settlement by the 2nd Appellant before the Fulani War. That in any case, the Fulani War was an intervening event in the history of the 2nd Appellant on the land in dispute while the grant of the land to the 2nd Appellant by Aresapa was admitted by the Respondent.
Learned Senior Counsel for the Appellant conceded that, the evidence of first settlement, which the learned trial Judge relied upon, was neither pleaded nor supported by any of the exhibits tendered by the parties and therefore went to no issue. That in the circumstances, the learned trial Judge ought to have believed the oral testimony of CW8 which is supported by documentary evidence, and also in line with the testimonies of CW1, CW2 and CW7. That in any case, the evidence of the 2nd Appellant and that of his witnesses on how he acquired the title to the land in dispute was admitted by the Respondent.
Learned Senior Counsel for the Appellants went on to submit that, evidence tendered by a party which supports the case of the adverse party can be relied upon by the adverse party to establish its case. That in the instant case, Exhibit “D3” tendered by the Respondent (the same as Exhibit “P12” tendered by the Appellants) emanate from the same source (National Archive of Nigeria), support the case of the Appellants in relation to the grant of the land in dispute to the 2nd Appellant by Aresapa after the Fulani War, and therefore ought to have been ascribed probative value by the trial Court. The cases of Piaro v. Tenalo (1976) 12 SC.31; Odi & 5 Ors v. Iyala & 2 Ors (2004) 8 NWLR (pt.875) 283; Faloughi v. First Impression Cleaners Limited (2014) 7 NWLR (pt.1406) 335 andEgharevba v. Osagie (2009) 18 NWLR (pt.1173) 299 were cited in support. We were accordingly urged to re-evaluate Exhibits “P11A” – “F” and “D3” which was heavily relied upon by both the Appellants and the Respondent. The case of Lawal v. Chief Yakubu Dawodu & Anor (1972) All NLR (pt.1) 270 at 286 was cited in support.
On issue three (3), learned counsel for the Appellants contended that, the 1st Appellant pleaded its root of title to the area verged “Blue” on the dispute Survey Plan (Exhibit “P3”). That the Appellants also tendered a Dispute Survey Plan, Certified True Copy (CTC) of the judgment in Suit No: HOG/35/2001; Purchase Receipt and Deed of Assignment which were admitted in evidence as Exhibits “P3”, “P4”, “P5” and “P6” respectively. It was then submitted that the Deed of Assignment between the 1st and 2nd Appellants (Exhibit “P6”) is valid and competent to establish the title of the 1st Appellant to the parcel of land in dispute. That the sale and transfer of the parcel of land in dispute to the 1st Appellant was executed after the judgment in Suit No: HOG/35/2001 in favour of the 2nd Appellant; and that there was no subsisting order of Court staying the execution of the said judgment (Exhibit “P4”) at the time of such sale and transfer of title to the 1st Appellant. The case of Jimoh v. The Minister, Federal Capital Territory & 2 Ors (2016) LPELR – 40422 (CA) was then cited to submit that, an appeal that had been filed against such judgment would not operate as a stay of execution of the judgment.
Learned Senior Counsel for the Appellant then submitted that, the 1st Appellant established the root of his title to the land in dispute through the 2nd Appellant vide the production of a duly stamped and registered Deed of Assignment (Exhibit “P6”). The case of West African Cotton Limited & Anor v. Yankara (2008) 4 NWLR (pt.1077) 323 at 338 was cited in support; and to further submit that, despite the abundance of oral and documentary evidence before him, the learned trial Judge set aside the Deed of Assignment. It was further submitted that the Respondent drove out the 1st Appellant from the parcel of land in dispute on the erroneous assumption that the judgment of the Court of Appeal (Exhibits “P10” and “D1”) had awarded him (Respondent) title to land in dispute. That Exhibit “P10” merely struck out the Writ of Summons in Suit No: HOG/35/2001 for being a nullity. We were accordingly urged to resolve issues 1, 2 and 3 in favour of the Appellants.
In response, learned counsel for the Respondent submitted that the cardinal duty of a trial Court is to make necessary findings of fact on the evidence placed before it by the parties. The case ofAkingbehin Tinubu v. Khalil & Dibbo Transport Ltd (2000) LPELR – 3249 per Ejiwunmi, JSC was cited in support. Learned Counsel then submitted that, the learned trial Judge painstakingly reviewed the entire evidence led in this case. Referring to the judgment of the trial Court at pages 364 – 365 of the record of appeal, learned counsel submitted that, the learned trial Judge gave adequate consideration to the exhibits tendered by the Appellants.
I must pause here to point out that the response of learned counsel for the Respondent to arguments of the Appellant was just wishy-washy. Learned Counsel did not respond to the germane issues raised and argued by the Appellants. The response of learned counsel for the Respondent was like an explanatory treatise or chronicle of the judgment of the learned trial Judge on the Appellants’ Claims before the Court. The whole narrative given by learned counsel for the Respondent boils down to this; that the learned trial Judge duly considered and evaluated the evidence adduced by the Appellants before dismissing their claims. It should be noted that, the duty of a Respondent is to defend the judgment of the trial Court. To that end, he has a duty as required by Order 19 Rule 4 (2) of the Court of Appeal Rules, 2016, “to answer all material points of substance contained in the Appellant’s Brief….. as well as reasons why the appeal ought to be dismissed…” This was substantially lacking in the Respondent’s Brief of Arguments as can be seen at pages 6 – 7 of the record of appeal.
The only argument of substance is at pages 7 – 8 of the Respondent’s Brief of Arguments where learned Counsel contended that, the Deed of Assignment (Exhibit “P6”) was prepared during the pendency of the case anchored on the title of the 2nd Appellant which had been rightly refused by the Court below. That as the 2nd Appellant’s Claim to title had been dismissed by the Court below, Exhibit “P6” had no leg to stand on. That the position of the law is not as stated by learned Senior Counsel for the Appellants, which is to the effect that, because there is no subsisting order of stay of execution, a document made pendente lite could be properly given value. The case of Leaders & Co. Ltd v. Christlieb Plc & Ors (2016) LPELR 41471 was cited in support, and to further submit that, the document having been procured during the pendency of Appeal No:CA/I/131/09 is caught by the doctrine of his pendens. We were accordingly urged to hold that the trial Court was right in setting aside the Deed of Assignment (Exhibit “P6”).
In reply on points of law, learned Senior Counsel for the Appellant contended that, parties are bound by the records and that from the records, the learned trial Judge failed in his duty as an impartial arbiter because while the CW3, CW5, CW6 and CW8 linked the exhibits tendered in their various Written Statements on Oath, the learned trial Judge held erroneously, that the documents were not linked to the Appellant’s case.
Learned Senior Counsel for the Appellants also submitted that, the principles of law enumerated inOdofin & Ors v. Mogaji (1978) 1 LRN 212 was not followed by the learned trial Judge. That in the instant case, the Appellants relied on traditional history, documentary evidence and acts of possession to prove title to the parcel of land in dispute. That documentary evidence is the best evidence but same was ignored by the learned trial Judge. The cases of Mbanefo v. Agbu (2014) 6 NWLR (pt.1403) 238 at 265 paragraphs F – H and U.B.A Plc v. J.M. & Co. Nig. Ltd (2016) 5 NWLR (pt.1504) 171 at 199 paragraphs B – C were cited in support and to submit that the documentary evidence in this case, confirmed the traditional history of the 2nd Appellant to the land in dispute and totally destroyed the Respondent’s traditional evidence and acts of possessions.
On the Deed of Assignment (Exhibit “P6”), learned Senior Counsel submitted that, it is not caught by the doctrine of lis pendens as the four conditions for the application of the principle as stated by the Supreme Court in the case of Oronti v. Onigbanjo (2012) 12 NWLR (pt.1313) 23 were not satisfied. We were accordingly urged to hold that the Deed of Assignment was not made during the pendency of any Suit but after the judgment of the trial Court was delivered and the appeal was pending in the Court of Appeal because, “suit” or “action” are not the same as “appeal”.
Now, it is clear, from paragraphs 11(i) & (ii) and 12 (a), (b) and (c) of the Further Amended Statement of Claim that the main Claims of the Claimants/Appellants are declaratory in nature. The other legs of the Claims of damages for trespass and perpetual injunction are dependent on the success of the declaratory reliefs sought. It is the settled law that the burden of proof in a declaratory action rests squarely on the Plaintiff. To that end, to succeed, the Plaintiff must adduce cogent and convincing evidence which must satisfy the Court that he is entitled to the relief sought. In doing that, the Plaintiff must rely on the strength of the evidence adduced by him and not on the weakness of the defence, even where admissions have been made by the defence. However, there may be circumstances where the Plaintiff may take the benefit of an aspect of the Defendant’s case which supports his case. Ultimately however, the burden of proof in a declaratory action rests solely on the Plaintiff, the success of which will depend on the evidence adduced by him, for no declaration will be made in his favour in the absence of such evidence. See Onwugbufor & Ors v. Okoye & Ors (1996) 1 NWLR (pt.424) 252; Mbani v. Bosi & Ors (2006) 11 NWLR (pt.991) 400; Kazeem & Anor v. Mosaku & Ors (2007) LPELR – 1684 (SC) and Onovo & Ors v. Mba & Ors (2014) 14 NWLR (pt.1427) 391. Like in all civil cases, the burden will be discharged on a balance of probabilities or preponderance of evidence. Generally in law, the onus of proof does not shift where declaratory reliefs are sought but rest always on the Plaintiff. That being so, he has to lead credible evidence to establish his claim because, a Defendant who has not Counter Claimed has no onus to proof anything. For that reason, where the Defendant has not Counter-Claimed, the onus on the Plaintiff is to first establish a prima facie case before a consideration of the Defendant’s case will arise. Accordingly, where the Plaintiff fails to adduce evidence or the evidence adduced by him is unsatisfactory, he would have failed to discharge the burden cast on him, and his case will suffer the fate of dismissal.
However, where the Defendant has Counter-Claimed, as in the instant case, he will be in the same position as the Plaintiff to prove his Counter-Claim. In that case, he would also be required to adduce concrete, credible and satisfactory evidence to establish his Counter-Claim otherwise, his Counter-Claim will be dismissed. See Dim v. Enemuo (2009) 10 NWLR (pt.1149) 353; Oyedeji v. Oyeyemi(2008) 6 NWLR (pt.1084) 484; Adeleke v. Iyanda (2001) 6 SC.1; Luke v. Rivers State Housing Authority (2010) 5 NWLR (pt.1188) 604.
Now, where evidence has been led by both parties, the duty of the trial Court, is to evaluate and ascribe probative value to each piece of evidence placed before him. The trial Court will evaluate such evidence by first considering the Plaintiff’s case in view of the totality of evidence adduced at the trial. He does that by weighing the evidence adduced by the parties on an imaginary scale of justice so as to see which side of the scale will preponderate. Where the scale of justice weighs in favour of the Plaintiff, judgment will be given in his favour but where it preponderates in favour of the Defendant, judgment will be against the Plaintiff. In the process of evaluation of the evidence in order to determine which side of the scale the justice of the case will preponderate, the Court will have regard to the following:
(a) Whether the piece of evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive of the issue; and
(e) Whether it is more probable than that given by the other party.
The evaluation of the evidence therefore necessarily revolves around the reasoned belief of the evidence of one of the parties and the disbelief of the other; or a reasoned preference of the version of the case of one of the contending parties. The reasoning and conclusions of the Court must be predicated on the evidence adduced by the parties in proof of the facts pleaded by the parties. See Akintola v. Adegbite (2007) All FWLR (pt.372) 1891 at 1898; Adeyeye v. Ajiboye (1987) 1 NWLR (pt.61) 432 at 451; T. Delak Distribution Service Ltd & Anor v. Ugbowanko (2018) LPELR – 46480 (CA) and Ajeigbe v. Idowu (2011) 17 NWLR (pt.1276) 422. Thus inAkinbade & Anor v. Babatunde & Ors (2017) LPELR – 43463 (SC), my Lord Okoro, JSC said:
“Evaluation of evidence entails the trial Judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other evidential evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve.
The belief must be a reasoned preference of one piece or version of evidence to the other….”
That being so, the trial Court that saw, heard and observed the demeanour of the witness that testified before it, has the primary duty to evaluate and ascribe evidential weight to such evidence, including documentary evidence. Where the trial Court has dutifully, effectively and correctly evaluated the evidence, this Court, being an Appellate Court will not interfere with the conclusions made. It is only where the trial Court is found to have failed in its duty, that this Court will be compelled to interfere by re-evaluation and ascription of probative weight to such evidence. See Lawal v. Dawodu (1972) 8 – 9 SC. 83 at 114 – 115; Amadi & Ors v. Nwanyinkwo & Ors (2012) LPELR – 19682 (CA) and Okonkwo v. Okonkwo (2010) 14 NWLR (pt.1213) 228. Thus, this Court will only interfere where the findings of the trial Court are found to be perverse or has led to injustice. Similarly, where the trial Court fails to evaluate the evidence at all or improperly did so, the Appellate Court will intervene and reevaluate such evidence. See Abiodun v. State (2013) 9 NWLR (pt.1358) 138; Lagga v. Sarhuna (2008) 16 NWLR (pt.1114) 427 and Bunge v. Governor of Rivers State(2006) 12 NWLR (pt.995) 573.
Now, in the instant case, it appears that, the learned trial Judge treated the claims of the 1st and 2nd Appellants as separate and distinct claims. This can be found at page 366 of the Records where the learned trial Judge observed that:
“The 2nd Claimant relied on traditional evidence to prove his title to the land in dispute.”
The learned trial Judge then proceeded to observe at page 402 of the record of appeal as follows:
“This leads me to a consideration of the claims of the 1st Claimant.”
This, the learned trial Judge did after first dismissing the 2nd Claimant/Appellants Claims. I think this complication arose from the way the Claimants structured their pleadings. Indeed, from the evidence adduced at the trial in proof of the facts pleaded, it is evident that the claims of the Appellants are intricately connected and interwoven. From the facts pleaded and evidence led thereon, the success or failure of the 1st Appellant’s Claim depended largely on the success or failure of the 2nd Appellant’s Claim. This is because it was averred, by both oral and documentary evidence led thereon, that the 1st Appellant derived title to the land in dispute from the 2nd Appellant. Thus, whether or not the 1st Appellant jointly sued together with the 2nd Appellant, he (1st Appellant) had the onus to lead credible evidence to show that his grantor (2nd Appellant) had valid title to the land which he could grant or transfer to him. This is in accordance with the law, to the effect that, a Plaintiff who traces the root of his title to a particular grantor, has the burden to prove the title of that grantor, save where same has been admitted by the adversary. SeeNgene v. Igbo & Anor (2000) LPELR – 1987 (SC); Mogaji & Ors v. Cadbury Fry (Expert) Ltd(1985) 2 NWLR (pt.7) 393; Alli & Anor v. Alesinloye & Ors (2000) LPELR – 427 (SC); Bello v. Sanda (2012) 1 NWLR (pt.1281) 219; Adole v. Gwar (2008) 11 NWLR (pt.1099) 562 and Otanma v. Youdubagha (2006) 2 NWLR (pt.965) 337. In the case ofNruama v. Ebuzoeme (2006) 9 NWLR (pt.985) 217 at 234 – 235 paragraphs A – B, Adekeye, JCA (as he then was), in very clear words stated as follows:
“Once a party pleads and traces his root of title to land to a particular person or source and his averment is disputed and challenged, that party, to succeed in the suit must not only establish his own title to such land, he must also satisfy the Court on the validity of the title of that particular person or source from which he claims to have derived his title.”
Similarly, the Supreme Court held per Iguh, JSC in the case of Ngene v. Igbo (2000) 4 NWLR (pt.651) 131 held as follows:
“It is beyond dispute that once a party pleads and traces the root of his title to a particular person or family, that party must establish how this person or family derived his title to such land. Accordingly, the Plaintiff to succeed in his Claim for declaration of title to the land in dispute in the present action must not only plead and establish his title thereto but also the title of the person from whom he claims, for, as the maxim goes, nemo dat quod non habet, meaning that no one can give that which he does not have…”
In the instant case, the proof of the title of the 1st Appellant is inextricably tied to the proof of the validity of the 2nd Appellant’s title to the land in dispute, being the grantor.
The Appellants had pleaded and the learned trial Judge found that the proof of title of the 2nd Appellant to the land in dispute was hinged on traditional history. There is no appeal against such finding, although the Appellants seemed to suggest that the 2nd Appellant also established his title to the land in dispute by documentary evidence and acts of long possession. It is the settled law that proof of title by traditional history or evidence is antithetical and parallel to one of proof of title by acts of ownership or long possession. See Balogun v. Akanji (2005) All FWLR (pt.262) 405 and Okafor v. Idigo (1984) 1 SCNLR 481, where Obaseki, JSC stated clearly that:
“Frequent and positive acts within living memory are not essential to justify the inference of exclusive ownership of land under native law and custom where there is conclusive traditional evidence of ownership.”
It therefore means that, where the traditional history of the Plaintiff has broken down, his claim would fail. Thus, the acts of possession or numerous acts of ownership exercised on the land, would in the circumstances amount to incidents of ownership of the land, or trespass where the proof of traditional history has failed. See Okoko v. Dakolo (2006) LPELR – 2461 (SC); Mapamieari & Anor v. Opu-Imoh & Anor (2019) LPELR – 49024 (CA) and Omotayo v. C.S.A. (2010) 18 NWLR (pt.1218) 1 at 31. In the instant case, the Appellants having pleaded the root of title of the 2nd Appellant through traditional evidence were bound by that mode. They could not be permitted, having pleaded traditional history as their root of title, to rely on acts of ownership or long possession and documents of title. If the documents of title were pleaded in respect of the 1st Claimant, its validity was dependent on the proof of the 2nd Appellant’s title to the land.
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Now, is the law that, a Plaintiff or Claimant who predicates his Claim of title to land on traditional history, has the burden to plead and lead credible evidence to establish the root of such title to the land in dispute. Such evidence to be adduced must show how the title to the land devolved to him without any missing links in the genealogy or in the chain from the original founder of the land to his progenitors and eventually to him. To that end, he must plead and adduce credible evidence to establish the following facts:
(a) who founded the land;
(b) how the land was founded; and
(c) the line of the intervening owners though whom he derived his title and their particulars.
The history of the devolution of the land from the original founder to the Claimant must present a consistent line of succession without any breakage in the chain of devolution and without any gaps which are unexplained. See Dakolo v. Rewane Dakolo (2011) 16 NWLR (pt.1272) 22 at 47; Anyafulu & Ors v. Meka & Ors (2014) 7 NWLR (pt.1406) 396 per Okoro, JSC; Godfrey Ifediora & Ors v. Eugene Okafor & Ors (2019) LPELR – 49518 (SC); Nkado & Ors v. Obiano & Anor (1997) 5 NWLR (pt.503) 31 and Kalio & Anor v. Woluchem & Anor (1985) LPELR – 1651 (SC). See also, Ezeokonkwo & Ors v. Okeke & Ors (2002) LPELR – 1211 (SC).
In the resolution of this issue, the learned trial Judge, after considering the pleadings of the Appellants on the root of title of the 2nd Appellant and the evidence led thereon, held that, the evidence of traditional history of the 2nd Appellant’s root of title to the land in dispute came largely through CW8. Thus, referring to paragraph 3(h) of the Written Statement on Oath of the said CW8, the learned trial Judge held at page 398 of the record of appeal as follows:
“The evidence of CW8 is to the effect that after the demise of Fagbemi their ancestor, he was succeeded by his son Okedayisi Oyelola. And that it was his successor Okedayisi Oyelola who led his people to Ogbomosho to join the Yoruba army to prevent or stop the invasion of Yoruba land by Fulani invaders but he still maintained links with their homestead. It is instructive to note that the evidence of the 2nd Claimant could be divided into two periods. The first period was before the Fulani invasion of Yoruba land and that period was when Fagbemi the ancestor of the 2nd Claimant was granted land by Area (sic). At that point too, Iresa land was one entity and Oko and Ayetoro were not part of Iresa land. The second period was the post Fulani War era, when all those communities who fled to Ogbomosho returned to Iresa land. The evidence of CW8 was that his ancestors were re-settled in their former homestead by the Aresapa who became their overload pursuant to division of Iresa land between Aresapa and Aresadu. According to the witness, both Aresadu and Aresapa put members of Bolorunduro, Onisa, Abule Ajadi, Aderibigbe, Olose, Ologbo, Ido Isin, Lekewogbe, Odofunfu, Olorunda, Iten Ofa and Ojenike on a portion of the land for farming with consent of 2nd Claimant in terms of payment of Isakole. He also gave certain names of members of his family that also have their farms on the land in dispute.”
Those were the findings of the learned trial Judge on the traditional history given by the 2nd Appellant in proof of the root of his title to the land in dispute. However, without reasoned evaluation of those pieces of evidence, the learned trial Judge referred to the testimonies of DW3, DW4, DW5, DW6 and DW7 to specifically hold that the scale of justice titled in favour the Defendant/Respondent. It should be noted that DW3, DW4, DW5, DW6, DW10 testified as boundary men to the land in dispute. DW7, DW8 and DW9 also testified that the land in dispute belonged to the Respondent. The learned trial Judge then concluded at page 400 lines 12 – 20 of the record of appeal as follows:
“I therefore accept them as true. It is instructive to note that out of the four boundary men pleaded by the 2nd Claimant only two of them testified. Aresapa and Ajagusi, only one customary tenant out of the lot mentioned by the Claimant also testified while some of the customary tenants such as Onisa, Ojenike and Lekewogbe testified for the Defendant, none of the family members of the 2nd Claimant who were said to have their farms on the land testified and no reason was proffered for their inability to testify. Agreed that some were said to be dead. The remaining members ought to have testified to give fillip to the case of the 2nd Claimant.
In the result I hold that the 2nd Claimant has not shown conclusively that he is the exclusive owner of the land in dispute. Relief (a) of the 2nd Claimant’s Claim is hereby refused.”
I am of the view that, what should have occupied the mind of the learned trial Judge at that stage is whether the Appellants had led credible and acceptable evidence in proof of the traditional history pleaded. I have carefully perused the traditional evidence as pleaded by the Appellants. Indeed, the Appellants pleaded the root of title of the 2nd Appellant to the land in dispute in paragraphs 10(d), (i) – (s) of the Further Amended Statement of Claim. The Appellants led evidence of those pleaded facts through CW8, one Chief Adesola Oyegbile Ajiboye. He appears to be the star witness for the Appellants and his Written Statement on Oath of the said witness is in page 186 – 191 of the records. He stated that he is a Chief and principal member of the Aagba Chieftaincy Family (the 2nd Appellants). The relevant portion of his testimony in respect of their claim to title is at paragraph (h) in his Written Statement of Oath (pp.188 – 189 of the record of appeal) is as follows:
(h) That the entire area verged red as shown on the said Survey Plain which the Defendant issued eviction notice vide the letter of 5th July, 2004 is:
(i) The property of the members of the family of the 2nd Claimant settlement.
(ii) The said land was first settled upon by Fagbemi the ancestor of the 2nd Claimant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(iii) That Fagbemi was a powerful man and hunter who went round the length and breadth of the said land during his life time.
(iv) At the material time of the said settlement by Fagbemi; Ayetoro and Oko were not in existence within the present Surulere Local Government but in their various homesteads then.
(v) Fagbemi the first settler on the area verged red exercised various acts of ownership by hunting, cultivating same for farming, letting portions to customary tenants for farming, establishing settlement, selling for agricultural ventures, etc.
(vi) On the aforesaid land, Fagbemi begot Okedayisi Oyelola.
(vii) Upon the demise of Fagbemi he was buried on the land aforesaid.
(viii) On the demise of Fagbemi, Okedayisi Oyelola succeeded him and was installed as Alagba by Alaafin of Old Oyo.
(ix) During the time of the Fulani interline (sic) wars, Okedayisi Oyelola led his people of Aagba to Ogbomoso to join the Yoruba army to prevent the incursion of the Fulani invaders into Yoruba land.
(x) While in Ogbomoso, Okedayisi Oyelola still maintain acts of ownership on the portion of land verged red as aforesaid.
(xi) At Ogbomoso after the demise of Okedayisi Oyelola, Son (sic: Soun) of Ogbomoso installed in succession as Alaagba, namely Oyekunle, Aholokun, Oyemide, Ojedeji, Sangolana, Olugbodi, Olajoju, Odeje, Oyesola Adisa, David Olaniyan Olajoju.
(xii) That upon return of Aagba, the power of prescribed authority for the installation of Alaagba has been vested on the Aresapa of Iresapa who in turn installed Chief Thomas Ajiboye Olajoju as Alaagba of Aagba.
(xiii) That upon the said return to Aagba, both Aresadu and Aresapupa put the members of Bolorunduro, Orisa, Abule Ajadi, Aderibigbe, Olose, Olose, Ologbo Ido Isin, Leke Magbe, Odo Funfun, Olorunda, Ilenla Ota and Ojenike on portion of the said land for farming with consent of the 2nd Claimant on terms of the payment of Isakole.
(xiv) That the said land the members of the 2nd Claimant’s family have their farmland thereon, namely Emmanuel Akande Olajiju (now deceased), David Alabi (now deceased), Raimi Akangbe, Amuda Raji, 2nd Claimant, Adebayo Olaniyan, Sunda Olaniyan, Karimu Gbadamosi, Gbemisoye Olainyan, Jacob Oyedele (deceased), David Oyo (now deceased), Thomas Akinola (now deceased).
Now, at the time the CW8 testified, he was not contradicted in cross-examination. Indeed, the testimony of CW8 is corroborated by that of CW1 who testified that he is the Mogaji of Aresapa Chieftaincy family. He testified that it was the Aresapa who installed the original 2nd Appellant as the Alaagba of Aagba being the prescribed authority to do so. Furthermore, that it was his family that settled the 2nd Appellant’s family on the land in dispute although the Respondents have their own portion of land at Ahoro Oko in Orile Local Government Area of Oyo State. He stated also that, his forebears also settled the Respondents at Ahoro Oko. It is my view therefore, that the reasons given by the learned trial for disbelieving the evidence of the Appellants have nothing to do with the traditional history given by the Appellants’ witnesses. If anything, they are only relevant when considering acts of ownership or possession in recent years within living memory.
From the facts pleaded and the evidence adduced by the Appellants, I am of the view that the Appellants have adduced sufficient evidence to establish the root of their title through traditional history, and which evidence I find to be conclusive. Indeed, the Appellant pleaded and led evidence to the effect that the land in dispute verged “Red” on the Appellants’ Survey Plan (Exhibit “P3”) tendered by the Appellants was founded by one Aresa who allowed Fagbemi, the 2nd Appellant’s ancestor to settle on the land. That at that time, Oko Chieftaincy of the Respondents was non-existent. That after the demise of Fagbemi, his son Okedayisi Oyelola succeeded him and was installed the first Alaagba of Aagba by the then Alaafin of Oyo. That their sojourn on the land was interrupted by the Fulani invasion when the entire town of Iresa was sacked and the people took refuge in Ogbomoso. That it was during the Fulani War that Aresa (the grantor of the land to Fagbemi) died, leaving two children named Aresadudu and Aresapupa; and that after the war, the two sons returned to Iresa land but soon quarreled and the Iresa land was divided between the two sons of Aresa. That the 2nd Appellant’s portion fell on the side of the land taken by Aresapupa, and therefore Aresapupa became the grantor and therefore overlord of the 2nd Appellant’s family. That, it was the 2nd Appellant who led the Respondent to Aresapa for Aresapa to grant them (Respondents) to live on.
The Appellants also contended that it was Okedayisi Oyelola who led his people of Aagba to Ogbomoso to join the Yoruba Army and that while at Ogbomoso, Okedayisi maintained contact with the parcel of land granted verged “Red” on Exhibit “P3”. That on the return of the Aagba people to the land after the Fulani war, the installation of the Alaagba of Aagba had fallen under the prescribed authority of the Aresapa of Iresapa who then installed Chief Adesola Oyegbile Ajiboye as the Alaagba of Aagba.
The Respondent on the other also relied on traditional history which was pleaded in paragraphs 6(i) – (xxii) of the 5th Amended Statement of Defence and Counter-Claim. Briefly, the case of the Respondents is that, the parcel of land in dispute which they called Oko-Ile was founded by Elese the brother of Oranmiyan, the founder of Oyo Ile. That Elese begat Ogogo and after the death of Ogogo he was succeeded by his children Akinrintewo and Adelowo who also exercised various acts of ownership over the land. That Akinrintewo became the head of the Oko family and begat Oludimo who became the first Oba of Oko. That during the Fulani Wars, Aagba and other villages ran to Ogbomoso but Oko did not abandon its homestead. Furthermore, that after the Fulani War, the 2nd Appellant’s Aagba people returned to Oko and were resettled by Oba Ojo Adio of Oko. That the people of Aagba were settled at a place called Ijana as customary tenants of the Oko people. The Respondent then pleaded and led evidence that, the Aagba people of the 2nd Appellant did not settle in their original homestead upon their return from Ogbomoso because they feared another attack by the Fulani Jihadists and therefore Oba Ojo Adio settled them on Oko land as customary tenants. That however in 1932, the Aagba people of the 2nd Appellant rebelled against their overlord when they challenged the title of the Oko people over the land. That as a result of the rebellion, the then Acting District Officer, one Mr. R.L. Wilkes dealt with the issue by ordering the Aagba people to go back to their own land out of Oko land but the Aagba people pleaded during the reign of Oba Oyegbile Oyebode of Oko to allow them to continue to stay on the land as customary tenants on payment of ishakole.
Now, after reviewing the evidence led by the Respondents/Counter-Claimants on the facts as pleaded, the learned trial Judge found that from the totality of the evidence adduced by both parties, the scale of justice weighs in favour of the Defendants/Respondents. A careful consideration of the judgment would show that the learned trial Judge failed to review the evidence of traditional history adduced by the Respondents before arriving at that conclusion. None of DW1, DW3, DW4, DW5, DW6, DW7, DW8, DW9, DW10 and DW11 gave evidence of the traditional history of the land in dispute. Almost all of them stated that they are boundary men of the land in dispute and that the land in dispute belong to the Respondent’s family, without more. They could not, however, give evidence of how the Respondent’s family came to own the land in dispute.
From the totality of the evidence adduced by both sides, it is an undisputed fact that the 2nd Appellant’s Aagba Chieftaincy family owned and occupied the land which they claim over a long period of time before they were forced by circumstances of war to flee the land and live for several years in Ogbomoso. It is also an undisputed fact that, after the war, the 2nd Respondent’s Aagba family decided to return to their homestead or ancestral land, which they claim to be the parcel of land marked “Red” on Exhibit “P3”. That upon arrival on the land in dispute, the land had been divided between the two children of Aresa who was the original grantor of the land to Fagbemi, the ancestor of the 2nd Appellant’s family. That the land having been shared, between the children of Aresa, the 2nd Appellant’s portion fell within the land of Aresapupa and Aresapupa became their grantor.
The Respondents, in an effort to discountenance the evidence adduced by the Appellants, agreed that the 2nd Appellant’s Aagba family tried to return to their homestead, but upon arrival refused to settle thereon for fear of further attacks from the Fulani’s but preferred to accept to settle on land given to them by the Respondent’s Oko family, as customary tenants. I find this version of the story as narrated by the Respondent’s hard to accept and believe. It is also necessary to note that, the Respondents did not proffer any explanation as to what happened to the 2nd Appellant’s own ancestral land during the war. Considering the entire scenario and circumstances of the case, I am left in no doubt that the version of traditional history given by the Appellants is more believable than that of the Respondents.
Now, learned senior counsel for the Appellants had argued that the learned trial Judge failed to evaluate the documentary evidence adduced by the parties in proof of their claim on the ground that those documents were merely dumped on the Court without any evidence tying the documents with the Plaintiff’s claims. In determining this issue, it is worth noting that the documents were tendered from the bar at the pre-trial conference by consent of both counsel. No issue has been made by the parties as to whether this procedure was proper or not. However, in the evaluation of those documents, the learned trial Judge had held at pages 408 – 409 of the report as follows:
“The interest which the 1st Claimant acquired in the land in dispute was through the 2nd Claimant who has been adjudged not to be entitled to the declaration of title to the land in dispute. Therefore the 2nd Claimant and the 1st Claimant are caught in the web of the latin maxim “nemo dat quod non habet”, that is, no one gives what he does not have. The 2nd Claimant has not established his right to the exclusive possession ownership of the land which was sold to the 1st Claimant. Aside this fundamental issue, another issue which would have worked against the claim of the 1st Claimant is that none of the documents tendered as Exhibits at the Pre-Trial conference and which formed the pivot upon which the case of the 1st Claimant rest was linked with the case of the 1st Claimant when the witnesses gave evidence. It is bounden duty of a witness to link the contents of the document admitted as Exhibit with his case by referring the Court to specific pages of the document which contain the evidence that support his case. This is clearly an omission due to inadvertence of counsel. The position of the law was clearly stated in WALTAR VS. SKYLL (NIG.) LTD (2000) FWLR (pt.13) 2244 at 2253 where the Court held as follows: “when a document is tendered in evidence, it is the duty of the party tendering it to go further and adduce evidence of its contents as it is not the duty of the Court to embark on an exercise of investigating such documents to arrive at the evidence referred to establish the claim.”
From the portion of the judgment quoted above, it is obvious that the learned trial Judge did not consider it necessary to evaluate and/or accord any probative value to the documentary evidence tendered at the hearing. He did that on the ground that the Appellants did not lead any evidence to link the documents to any aspect of their case, particularly the claims as relate to the 1st Appellant. It should be noted that the totality of the documents admitted were tendered at the pre-trial conference. Whether that is proper or not is not our concern here. The fact remains that they are on record as documentary evidence in respect of the claims of the parties.
The law is that, admissibility of documents may not necessarily translate to the Court relying on same and deciding the rights of the parties. It means therefore, that admissibility of a document is a different thing from the weight to accord such document, because a Court may admit a document but accord it little or no evidential value. For a document to attract any evidential value, there must be evidence from a witness or witnesses which will explain to the Court the purpose for which the document is tendered, for without such explanatory evidence, the document will remain of no probative value in the determination of the issues before the Court. Usually, documents are tendered and admitted at the trial through witnesses. The pre-trial session is not the proper forum for the tendering and admission of any evidence, oral or documentary. The pre-trial session is meant to streamline the issues to be canvassed at the trial proper, and to agree on documents which will not be objected to at the trial.
Learned Senior Counsel for the Appellant has argued that, the documents admitted at the pre-trial session were referred to in the various Written Statements on Oath of the witnesses. That may well be so, but the practice is that, where documents are mentioned in the Written Statement on Oath of witnesses, it is for counsel to lead the witness to adopt such written statement at the trial, and then refer him to those specific portions of the written statement where the documents are mentioned before tendering the document(s) in evidence. However, where such documents are admitted and marked at the trial by consent, but no mention is made of them at the trial, it would not be appropriate for the parties to leave to the Court, the duty of tying the documents to the specific aspects of their cases by scanning the written statement to find such link. I think that there was a blunder in procedure by counsel which inevitably affected the evidential value of those documents. The learned trial Judge was therefore, in my view, right in considering those documents as merely dumped on the Court. See Nyesom v. Peterside (2016) 17 NWLR (pt.1512) 452; Dalek Nig. Ltd v. Oil Mineral Producing Areas Development Commission (2007) 7 NWLR (pt.1033) 402 and Flash Fixed Odds Ltd v. Akatugba(2001) 9 NWLR (pt.717) 46 at 63.
Having found as above, I wish to point out that the claim of title by the 2nd Appellant was based on traditional evidence. The documents tendered would not in any way be of any evidential value in proof of the traditional history.
This is because, proof of title to land by traditional history is purely a matter of oral evidence. If documentary evidence is brought, it would only serve to strengthen the claim but not to prove it. It is trite law that proof of title to land by traditional history is the oral account of the rights alleged to have existed beyond the time of living memory and passed from generation to generation. It is therefore undocumented. See Obasi v. Onwuka (1987) 3 NWLR (pt.61) 364 and Dike & Ors v. Nzeka II & Ors (1986) 9 NWLR (pt.34) 144. That being so, it is my view that the documentary evidence tendered are of no utility value in the proof of the title of the 2nd Appellant, which was through traditional history.
That now brings us to the complaint of the Appellants on the decision of the learned trial Judge to set aside Exhibit “P6”; which is the Deed of Assignment executed by the 2nd Appellant in favour of the 1st Appellant. The Deed of Assignment was executed in favour of the 1st Appellant in respect of the portion marked “Blue” on Exhibit “P3”. In arriving at the decision to set aside the Deed of Assignment, the learned trial Judge held at page 410 of the record of appeal that, in the light of the dismissal of the Claimants’ claim, the Deed of Assignment (Exhibit “P6”), dated the 12/9/2013 between the 1st and 2nd Claimants and which is registered as No.39 at page 39 in Volume 3699 of the Deeds Registry in the office at Ibadan, be set aside. It therefore means that the setting aside of the Deed of Assignment was consequent upon the dismissal of the Appellants’ Claim. As it is, it has been found here that the learned trial Judge erred in dismissing the Appellants’ claim of declaration of title. In other words, I find from the totality of the evidence on record, that the title of the 2nd Appellant to the land in dispute was established. Since the 1st Appellant derived its title from the 2nd Appellant whose title has been found to be proved, it would then mean that the 1st Appellant derived valid title to the portion of land verged “BLUE” on Exhibit “P3”. I therefore find and hold that the learned trial Judge erred when he set aside the Deed of Assignment (Exhibit “P6”) executed by the 2nd Appellant in favour of the 1st Appellant.
With that, I now come to issue No.4. Here, learned counsel for the Appellant had pleaded in paragraphs 10(e), (f) and (g) of the Further Amended Statement of Claim, that the Counter-Claim of the Defendant/Respondent in Suit No: HOG/35/2001 was dismissed entirely on the 22/2/2008. That, the dismissal of the Counter-Claim in Suit No: HOG/35/2001 is still valid and subsisting notwithstanding that the Writ of Summons and Statement of Claim in that suit was struck out on appeal for being incompetent.
Learned Senior Counsel for the Appellants went on to submit that, the Respondent as Appellant in Appeal No: CA/I/131/2009, did not appeal against the dismissal of his counter claim in the eight (8) Grounds of the Appeal in the Amended Notice of Appeal filed in the 22/10/2009. That in Appeal No: CA/I/131/2009, the Court of Appeal struck out the Writ of Summons for want of competence but did not overturn the decision of the High Court on the Counter Claim or pronounce on its validity or otherwise. Learned Senior Counsel then submitted that, it is the law that, the fact that a Writ of Summons has been struck out for out on appeal for want of competence or jurisdiction would not mean that the subsisting counter claim will suffer the same fate. The case of Broad Bank Nigeria Limited v. Zamogas Nigeria Limited (2011) LPELR – 3892 (CA) was cited to further submit that, it is because, a counter claim is a distinct, independent and special action.
Learned Senior Counsel for the Appellant went on to submit that, by the doctrine of stare decisis, the decision of the Court of Appeal is binding on the High Court and other Courts below it. That the facts and law in the case of Eguma v. Edem (2016) LPELR – 41240 (CA) are similar to this case, and therefore the ratio for that decision is applicable and binding in this case. That the learned trial Judge, unfortunately refused to follow that decision. It was then submitted that the decision of the High Court on the Counter Claim in Suit No: HOG/35/2001 which is between the same parties and/or their privies, is a conclusive proof of facts directly in issue to the claim of the 2nd Appellant on the land in dispute in the Counter Claim. Learned Senior Counsel then cited Section 173 of the Evidence Act to support his submission, and to further submit that, the Appellants pleaded that fact in paragraph 10(f) of the Further Amended Statement of Claim. That in the circumstances, the learned trial Judge should have resolved or affirmed the title of the 2nd Appellant to the land in dispute. Furthermore, that the doctrine of estoppel per rem judicatam operates to bar the Respondent from relitigating the issue of title on the land; which issue has been determined to finality in Exhibits “P10” and “D1”. That, the Appellants had pleaded the estoppel in paragraph 7 of the Joint Amended Reply and defence to the 5th Amended Statement of Defence and Counter Claim.
On this issue, learned counsel for the Respondents simply paraphrased the submissions of learned senior counsel for the Appellants without more. I therefore take it to mean that learned counsel for the Respondent had no answer to the point made out by the Appellant. That being so, the Respondents had nothing to respond to as point(s) of law.
Now, it is an established fact that there was a previous dispute between the 2nd Appellant’s Aagba family and the Respondent’s Oko Chieftaincy family, which led to litigation in the Oyo State High Court of Justice sitting in Ogbomoso; in Suit No: HOG/35/2001. The dispute was on title in respect of the same parcel of land subject of the action now on appeal before us. At the close of hearing, judgment was given in favour of the 2nd Appellant’s Aagba Chieftaincy Family while the Respondent’s Counter Claim was dismissed and title to the land affirmed in favour of the Aagba Chieftaincy Family of the 2nd Appellant. That judgment is in evidence in this action as Exhibits “P4”and “D1” respectively. Dissatisfied with the decision, the Respondent appealed to this Court in Appeal No: CA/I/131/2009. It therefore means that, the Respondent herein, was the Appellant in Appeal No: CA/I/131/2009. In that appeal, this Court pronounced upon the Writ of Summons, per Daniel-Kalio, JCA at page 14 of the judgment, thus:
“… I hereby strike out the Writ of Summons for want of competence and the appeal predicated thereon being ab initio incurably defective is also hereby struck out.”
Now, the issue here is, whether the judgment of this Court wherein the Writ of Summons in Suit No: HOG/35/2001 was struck out, affected the validity and sustenance of the judgment in that case. To determine the issue, it would be necessary to know the relationship between a main claim and a Counter-Claim. In law, a Counter-Claim is a separate and independent claim by itself. It is an action that is triable within the main claim for reason of convenience and to avoid multiplicity of actions. Like the main claim, a counter claim must be proved by the Counter-Claimant before the Court can grant the relief sought in the Counter-Claim. See Bilante Int’l Ltd v. NDIC (2011) 15 NWLR (pt.1270) 407; Kolade v. Ogundokun (2017) 18 NWLR (pt.1596) 152; Esuwoye v. Bosere (2017) NWLR (pt.1546) 256 and Anwoyi & Ors v. Shodeke & Ors (2006 LPELR – 502 (SC).
It therefore means that, even where the main claim has failed the Counter-Claimant will be entitled to prove his Counter-Claim. In other words, failure of the main claim does not mean that the Counter Claim will automatically succeed. This is because in a Counter Claim, the Defendant becomes the Plaintiff and the Plaintiff becomes the Defendant, and the Court would cast on him the burden of establishing his case exactly the same way he would have done, if he were the original Plaintiff. This is more so in an action where declaratory reliefs are sought and the parties are expected to succeed on the strength of the evidence presented by them. See Atiba Iyalamu Savings & Loans Ltd v. Suberu & Ors (2018) LPELR – 44069 (SC); Anwoyi & Ors v. Shodeke & Ors (2006) 13 NWLR (pt.996) 34; Dabup v. Kolo (1993) 9 NWLR (pt.317) 254 and Akaninwo v. Nsirim (2008) 9 NWLR (pt.1093) 439. In the determination of the issue, the learned trial Judge held at page 351 of the Record of Appeal as follows:
“The import of the judgment of the Court of Appeal in my considered view is that it has rendered the High Court judgment in Suit No: HOG/35/2001 in effective, obsolete and of no value at all. And no right or liability can accrue therefrom. The law is settled that no Court has the power or jurisdiction to hear and determine an action that was instituted or commenced by an originating process that has been held invalid or incompetent….”
Guided by the decision in Madukolu v. Nkemdilim (1962) NSCC (vol.2) 374 at 379, the learned trial Judge held that the entire proceedings including the judgment in Suit No: HOG/35/2001 is a nullity. The learned trial Judge then concluded at page 353 of the record of appeal that:
“In the light of the above exposition, I am of the considered view that the copious reference made by the learned counsel for the Claimants (in his final written address) to the judgment of the High Court in Suit No: HOG/35/2001 is of no moment and goes to no issue. In the same vein, the argument or submission of learned counsel for the Defendant on the issue or doctrine of lis pendens is definitely a surplusage since the decision in Suit No: HOG/35/2001 is a nullity which did not confer any right or obligation on any party.”
I was able to conduct some research of my own on the issue. I discovered that this Court has not spoken with one voice on the issue. While some of the decisions of this Court such as Adisa Waheeb Aberuagba & Anor v. Prince Mobadenle Oyekan & Ors (2018) LPELR – 43669 (CA), insist that where the Writ of Summons is voided, any Counter Claim in the same suit cannot be proceeded with. Thus, Barka, JCA in the suit cited above, held that:
“To insist that the counter claim in the circumstance can be prosecuted, when there is no written statement of claim originating the action, amounted to initiating a claim by way of a counter claim, as against the four known methods of commencing an action, to wit, writ of summons, originating summons, originating motion and petition.”
However, Barka, JCA took that position having realized that the cases cited before him which held a contrary view, must be understood from the circumstances in which they were decided. However, in the case of Dimacon Industries Limited v. Mr. Olayiwola Ajayi-Bembe & Ors (2017) LPELR – 42824 (CA), Georgewill, JCA held the view that where a Writ of Summons is struck out for incompetence, striking out would affect the statement of defence only but the counter claim remains valid, it being a separate claim. After extensive review of the authorities, my Lord concluded that:
“…So also is the immortal and evergreen dictum of Lord Denning in Macfoy v. UAC Ltd (supra) not applicable and of no avail to the Appellant. In the light of all, I said and held above, I have no difficulty resolving the sole issue for determination against the Appellant in favour of the Respondents. I hold firmly that the Court below was right in allowing the 3rd and 4th Respondents’ Counter-Claim, which is competent and independent of the Appellant’s claims for being a nullity.”
After a deep and sober reflection on the authorities I came across, I must admit that I am persuaded by the view that, a Counter Claim should remain and survive a Writ of Summons which has been struck out for being incompetent. I do agree that a Counter Claim is initiated within a subsisting claim initiated by a Writ of Summons but I equally realize that a Counter Claim does not depend on the survival of the main claim for its subsistence. Being an independent claim, the law recognizes that its initiation as an independent claim can be countenanced through that exceptional method. It appears to me therefore, that the initiation of a counter claim is recognized as an exception to the recognized methods of initiating proceedings in Court. Indeed this method is recognized for good reason, i.e, to avoid multiplicity of actions and to safe the cost of litigation. Thus, in the case of Oroja & Ors v. Adeniyi & ors (2017) 6 NWLR (pt.1560) 138, my Lord, Peter-Odili, JSC held as follows:
“Counter Claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the Defendant to maintain an action against the Plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the Defendant to enforce a claim against the Plaintiff as effectually as an independent action. As a matter of law, a counter claim is a cross action with its separate pleadings, judgments and costs.”
It was also held in Hassan v. Reg’d Trustees Baptist Convention (1993) 7 NWLR (pt.308) 679 at 690 that:
“The fate of a counter claim being an independent action does not depend upon the outcome of the Plaintiffs’ claim. If the Plaintiff’s case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with.”
In the instant case, the suit between the 2nd Appellant and the Respondent was fully heard and determined in the Court below. The claim of the 2nd Appellant succeeded while the counter claim of the Respondent was dismissed. That was in Suit No: HOG/35/2001. Being dissatisfied with the judgment, the Respondent herein appealed to this Court in Appeal No: CA/I/131/2009. The issue of the validity and competence of the Writ of Summons was raised on appeal. It is important to point out here that the Respondent as Appellant in Appeal No: CA/I/131/2009, did not appeal the judgment of the trial Court dismissing his counter claim on any ground. The Respondent’s appeal therefore centered on the judgment on the main suit as the judgment dismissing his counter claim was never appealed against. In other words, there was no appeal whatsoever against the judgment of the lower Court dismissing the Respondent’s counter claim. I am therefore of the view that, the Respondent is deemed to have conceded to the judgment of the Court in Suit No; HOG/35/2001 dismissing the said counter claim. He cannot now be permitted to relitigate the counter claim on the ground that the writ of summons in that suit had been found to be incompetent and struck out on appeal. The doctrine of estoppel per rem judicatam would not permit them to relitigate the counter claim which was dismissed in Suit No: HOG/35/2011. This issue (issue 4) is therefore resolved in favour of the Appellants.
The final issue in this appeal is on the cost of one hundred thousand naira (N100,000.00) awarded in favour of the Respondent being the cost of the action. I think this issue has now become a moot point, the Appellants’ Claims having succeeded. With the setting aside of the judgment of the trial Court, the award of costs against the Appellants will no longer be a point or issue for determination in this appeal. It has now become a non-sequitur and accordingly discountenanced.
Having thus resolved, it would be seen that the issues in this appeal have been resolved in favour of the Appellants. The result is that the appeal succeeds and is accordingly allowed. The Judgment of the Oyo State High Court, holden at Orile-Igbon delivered on the 25th day of June, 2018 is hereby set aside. I accordingly give judgment for the Plaintiffs/Appellants.
Now, it is apparent that the Appellants prayed the Court to grant them some declaratory reliefs, damages and injunction. It is my view that this Court having found that the claims of the Appellants as Claimants for declaration of title to the land in dispute were made out, same shall be granted. In the same vein, the justice of the case will be better served if the injunctive reliefs are granted so as to protect the rights of the Appellants from being further encroached upon by the Respondents. I note also that the Appellants claimed for general and special damages for trespass by the Respondents on the parcel of land in dispute.
It is the law that where a claim for declaration of title to land is coupled with a claim of damages for trespass and injunction, the law ascribes possession to the party who is able to prove a better title. Since trespass is an affront against possession the party who is able to establish a better title will have title declared in his favour by the Court and therefore entitled to possession. See Akinterinwa & Anor v. Oladunjoye (2000) 6 NWLR (pt.659) 92; Monkom & Ors v. Odili (2010) 2 NWLR (pt.1179) 419 and Ufomba & Anor v. Ahuchaogu & Ors (2003) 8 NWLR (pt.821) 130. Thus in the case of Ayanwale v. Odusami (2011) 18 NWLR (pt.1278) 328; Rhodes-Vivour, JSC said:
“Proof of ownership is prima facie proof of possession. The presumption being that the person with title to the land is in possession once the Court finds that a party has a better title to the land, a claim for trespass and injunction are easily sustained….”
In the instant case, the Appellants were on the evidence on record, able to establish that they have a better title to the land in dispute than the Respondents. The 2nd Appellant was able to prove the title of the Aagba Chieftaincy family to the land verged “Red” on Exhibit “P3”. That being so, they had the title which they could and did confer on the 1st Appellant. The 1st Appellant took up possession of the parcel of land verged “Blue” on the Dispute Plan (Exh.”P3”), which is the parcel of land sold to it by the 2nd Appellant via the Deed of Conveyance (Exhibit “P6”); when he was put on the land by the 2nd Appellant in the presence of witnesses. There is also uncontroverted evidence on the records that the Respondent entered onto the parcel of land with the aid of thugs and prevented the 1st Appellant from carrying out its business, the purpose for which the parcel of land was bought. In that respect, the 1st Appellant is entitled to damages.
It should be noted however, that the 1st Appellant sought both general and special damages. In law, trespass to land is actionable per se, i. e. without the requirement of proof of actual damages. That being so, the Court would award damages in recognition of the proprietary interest of the Claimant over the land in dispute. In awarding damages, the Court has discretion over the quantum of damages in monetary terms it would award, and therefore there are no fixed legal rules to be followed save for the usual caution that Courts in awarding damage should consider the rule on remoteness of damage. Furthermore, being an exercise in judicial discretion, it should not be done in an arbitrary or whimsical manner. Generally, the quantum of damage to be awarded in a claim of damages for trespass to land is a nominal one. See Queen v. Uche (1994) 6 NWLR (pt.350) 369; Oyeneyin v. Akinkugbe (2010) 4 NWLR (pt.1184) 265; U.B.A. Plc v. Samba Petroleum Ltd (2002) 16 NWLR (pt.793) 361 and Abiara v. Reg’d Trustees of the Methodist Church of Nigeria(2007) 11 NWLR (pt.1045) 280.
In the instant case, the 1st Appellant asked for the sum of N500,000,000 (five Hundred Million Naira) as general and aggravated damages due to the act of trespass committed by the Respondent. As pointed out earlier, the damages to be awarded in an action for trespass is a nominal one. It should be noted that aggravated damage is in a class of its own. It is different from general and/or special damages. That being so, the Claim for aggravated damages cannot be lumped together with a claim for general damages, as was done in the instant case. In the circumstances, I shall limit myself to the award of general damages which in any case is awarded even where actual damage or injury is not asserted or proved. See Aminetu Omolola Salami v. Union Bank of Nigeria Plc (2010) LPELR – 8975(CA).
The Appellants claimed for special damages. While the 1st Appellant claimed Five Hundred and Fifty-Five Million, Two Hundred and Thirty-One Thousand, Five Hundred Naira (N555,231,500.00) as special damages, the 2nd Respondent claimed Twelve Million Naira (N12 Million) for bunches of ripe palm fruits valued at the rate of N600.00 per bunch for 2,000,000 bunches. It should be noted that special damages, as the name entails are those kind of damages which are the result of the actual injury suffered and are the natural and approximate consequence of the Defendant’s act. Special damage therefore connotes pecuniary losses which can be unequivocally quantified in terms of their value in cash, and with certainty. See University of Benin v. Andrew Erinonwionren (2001) 17 NWLR (pt.743) 548; Ahmed & Ors v. CBN (2012) LPELR – 9341(SC) and OCFS Ltd v. Ogunleye (2008) All FWLR (pt.437) 48 at 64. The law therefore require that special damage must be specifically claimed and proved strictly. For special damage to be claimed they must be pleaded specifically and proved by evidence. See Kosile v. Folarin (1989) 3 NWLR (pt.107) 1; Adim v. Nigerian Bottling Co. Ltd & Anor (2010) 9 NWLR (pt.1200) 543 and Diamond Bank Plc v. Wellcare Alliance Ltd (2015) LPELR- 40762(CA).
Now, on the strength of the principles of law I have alluded to above, I have also carefully examined the facts of this case as pleaded and the evidence led thereon, I am of the view that the Appellants having proved title, and that the Respondent indeed trespassed on the parcel of land in dispute, they (Appellants) are entitled to judgment as follows; It is:
1. DECLARED that the 1st Claimant/Appellant is the Assignee and therefore entitled to the Statutory Right of Occupancy and Interest in that piece or parcel of land situate, lying and being at Aagba Chieftaincy Family Land, Aagba Village, Surulere Local Government Area, Oyo State more particularly described as the land verged “BLUE” on the Survey Plan No:OY/0245/2014/34D prepared by Adetunji Adeleke, Licensed Surveyor.
2. DECLARED that the several acts of disturbance, hindrance, threats, impediments, violence and by whatsoever means described of the Defendant/Respondent by himself, agents, servants, privies, workmen and howsoever described, and preventing the 1st Claimant/Appellant from entering as well as undertaking peaceable possession and use of the area of land so described above, and/or by his entry into the land to cause the eviction and/or ejection of the 1st Claimant/Appellant, its agent, servants and/or privies therefore amounts to trespass.
3. GENERAL DAMAGES in the sum of Five Million Naira (N5 Million) is granted against the Respondent in favour of the 1st Claimant/Appellant for trespass.
4. PERPETUAL INJUCTION is granted restraining the Defendant/Respondent by himself, privies, agents, workmen, servants or whosoever described from trespassing or in any way interfering with the 1st Claimant’s/Appellant’s peaceful enjoyment and use of the piece or parcel described in 1 above.
5. DECLARED that the 2nd Claimant/Appellant is entitled to Customary Right of Occupancy and interest over all that parcel or piece of land situate, lying and being at Aagba Chieftaincy Family Land, Aagba Village, Surulere Local Government Area, Oyo State, more particularly described as land area verged “RED” on the Survey Plan No.OY/0245/2014/34D prepared by Adetunji Adeleke (Licensed Surveyor).
6. DECLARED that the Letter dated 5th day of July, 2014 directing the Defendant/Respondent to eject and/or evict all the customary tenants through the 2nd Claimant/Appellant from the entire piece or parcel of land verged “RED” on the Survey Plan No.OY/0245/2014/34D, dated the 15th day of December, 2014 is illegal, unlawful, null, void and of no effect.
7. DECLARED that the acts of the Defendant/Respondent, his agents, servants, privies and workmen entering the area of land verged “RED” as contained on Survey Plan No.OY/0245/2014/34D of 15th of December, 2014, prepared by Adetunji Adeleke (Licensed Surveyor), to eject and/or evict the 2nd Defendant/Respondent amounts to trespass.
CROSS-APPEAL
The Respondent filed a Cross Appeal by leave of this Court granted on the 30/5/2019. The Notice of Cross-Appeal dated the 27/5/2019 was filed on same date but deemed filed on the 30/5/2019. The Cross-Appeal was argued in pages 10 – 16 of the Respondent’s/Cross-Appellant’s Brief of Arguments filed on the 27/5/2019 but deemed filed on the 27/2/2020. Four issues were formulated by the Respondent/Cross-Appellant for the determination of the Cross-Appeal as follows:
1. Whether the deed of assignment made between the 1st and 2nd Claimant is not caught by the doctrine of lis pendis (sic) as to make it void.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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- Whether the refusal of his Lordship to grant the Respondents’ claim of declaration of title was justified in view of his Lordship’s finding that she(sic) believed the evidence of the Defendant’s witnesses.
3. Whether in view of the holding of his Lordship that the result of his holding in issue 1 raised by the honourable Court that the judgment in Suit HOG/35/2001 declared a nullity by the Court of Appeal is to send back the parties to the status quo, his Lordship should not have granted an injunction to protect the Defendant.
4. Whether the Defendant was not entitled to damages.In response, the Appellants also filed a Joint Appellants/Cross-Respondents’ Brief of Argument. It was filed on the 02/3/2020. Therein, three (3) issues were raised for determination as follows:
1. Whether or not the Deed of Assignment made between the 1st and 2nd Claimants dated 12th September, 2013 is void for being caught by the doctrine of Lis Pendis (sic). [Ground 1].
2. Whether or not the learned trial Judge was right when he refused to grant the Cross-Appellant’s Title to Land claimed in his Counter Claim. [Ground 2] - Whether or not the learned trial Judge was right in refusing Cross-Appellant’s Claims for injunction and Trespass as contained in his Counter Claim. [Grounds 3 and 4].
Before I proceed, I find it necessary to point out that the Appellants/Cross-Respondents filed a Notice of Preliminary Objection against the Cross-Appeal. Same was filed on the 06/7/2020. In the Preliminary Objection, the Appellants/Cross-Respondents prayed for the following reliefs:
1. AN ORDER dismissing the Respondent’s Cross-Appeal as same is caught by the doctrine of estoppel per rem judicatam.The Grounds upon which the Preliminary Objection is premised are that:
1. That Oyo State High Court in Suit No. HOG/35/2001 dismissed Respondent’s Counter-Claim and granted Appellants’ Claims.
2. The Respondent filed an appeal before the Court of Appeal, Ibadan which set aside the Appellants’ Claims in Suit No. HOG/35/2001 on ground of nullity.
3. Respondent did not appeal against the dismissal of the said counter claim.
4. Appellants filed another Suit No. HOI/7/2015 against the Respondent and Respondent again filed a counter claim same as the one earlier dismissed in Suit No. HOG/35/2001.
5. The issue raised in Respondent’s Cross appeal has been settled in HOG/35/2001 against which Respondent never appealed.The Preliminary Objection was argued in pages 2 – 5 of the Appellants’/Cross-Respondents’ Brief of Arguments filed on the 02/3/2020. Therein, learned Counsel for the Appellants/Cross-Respondents cited the case of Ugo v. Ugo (2017) 18 NWLR (pt.1597) 218 at 237 – 238 to submit that, in law, the plea of res judicata operates not only against the parties but also against the jurisdiction of the Court itself. That the plea of res judicata was raised by the Appellants/Cross-Respondents in paragraphs 10(d), (e) and (f) of the Further Amended Statement of Claim filed on the 30/4/2018. The case of Ugo v. Ugo (supra) was again cited to submit that, for a plea of either issue estoppel or res judicatam to be sustained the following conditions must be met; to wit:
(a) The parties and/or their privies must be the same;
(b) Issue(s) in both the previous and the present cases must be the same.
(c) The decision in the previous case must be valid, subsisting and final;
(d) The res or the subject matter in the two cases are the same; and
(e) The Court that gave or rendered the previous decision must be competent.It was then argued that, all the above stated conditions are present in the present case. Referring to page 349 of the Record of Appeal, learned Senior Counsel for the Appellants/Cross-Respondents submitted that although the learned trial Judge observed that the Court of Appeal in CA/I/131/2009 was silent on the Counter Claim in Suit No. HOG/35/2001, went on a voyage of discovery and ended up to hold, erroneously, that the Counter Claim in Suit No. HOG/35/2001 cannot sustain in plea of estoppel per rem judicatam. Learned Senior Counsel then cited the cases of Hassan & Ors v. Registered Trustees of the Nigerian Baptist Convention & Ors (1993) 7 NWLR (pt.308) 679 at 690; Oroja v. Adeniyi (2017) 6 NWLR (pt.1560) 138 at 151 – 152; Ogbonna v. Attorney General of Imo State (1992) 1 NWLR (pt.220) 647 and Lokpobiri v. Ogola (2016) 3 NWLR (pt.1499) 328 in support. The case ofFidelity Bank Plc v. M. T. Tabora (2019) All FWLR (pt.975) 885 at 892 – 893 was then cited to submit that, the Cross-Appeal is caught by the principle of estoppel per rem judicatam and should be dismissed or struck out.
In response, learned Counsel for the Respondent/Cross-Appellant is of the view that the learned trial Judge did a painstaking review of the issue and came to the right conclusion that the doctrine of res judicatam does not affect the Counter Claim of the Respondent in the Suit subject of this appeal. We were accordingly urged to dismiss the Preliminary Objection to the Cross-Appeal because Suit No: HOG/35/2001 cannot create an estoppel per rem judicatam as the said Suit was declared to be a nullity.
Now, “estoppel per rem judicatam” is a Latin maxim which stipulates that, once a Court of competent jurisdiction has finally settled the issues in controversy between the parties in an action, none of the parties and their privies is permitted to relitigate those issues again by bringing a fresh action. This principle has been enacted by legislation under Section 173 of the Evidence Act, 2011 which stipulates that:
“173. 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 the ground on which it was based; unless 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”.
When such judgment is duly proved, it excludes a party in a subsequent proceeding or privies thereto, from litigating the issues settled therein afresh. For the plea of estoppel per rem judicatam to apply, however, the following conditions must be shown to exist:
(a) the parties or their privies must be the same in both the previous and present proceedings;
(b) the claim or issue in dispute in both actions must be the same;
(c) the res or subject matter of the litigation in the two cases must be the same;
(d) the decision relied upon to support the plea of estoppel per rem judicatam must be valid and subsisting; and
(e) the Court that gave the previous decision relied on for the plea is a Court of competent jurisdiction.
All the above enumerated conditions must co-exist for the plea of estoppel per rem judicatam to be sustained.
Thus, if any one of those conditions is not established the plea will be discountenanced. SeeIgwego v. Ezeugo (1992) 6 NWLR (pt.249) 561; Ekennia v. Nkpakara & Ors (1997) 5 NWLR (pt.504) 152; Balogun v. Adejobi (1995) 2 NWLR (pt.376) 131 and Jimoh & Ors v. Akande & Anor (2009)5 NWLR (PT.1135) 549.
In the instant case, the judgment referred to as constituting estoppel per rem judicatam is Suit No: HOG/35/2001. Particularly, it is the judgment in respect of the Counter Claim in that suit. This issue was resolved as issue three (3) in the main appeal. Therein, I resolved that, the judgment on the Counter Claim in Suit No: HOG/35/2001 was not affected by the decision of this Court in Appeal No: CA/I/131/2009 wherein the Writ of Summons was set aside for being a nullity. In other words that the decision on the Counter claim is valid and subsisting, same not having been affected by the judgment of this Court in Appeal No: CA/I/131/2009. The issues in the Counter Claim in that suit are the same as in the instant case, both of which dwell on declaration of title to the same land in dispute in this appeal as in suit No: HOG/35/2001. The parties are the same, save for the 1st Appellant/Cross-Respondent who is a privy at law to the 2nd Appellant/Cross-Respondent. It is the decision of a competent Court with jurisdiction to hear and determine the matter. On that note therefore, it is my view, which I do hold, that the cross appeal herein, is caught by the doctrine of estoppel per rem judicatam.
Having thus found, I hereby hold that the cross-appeal is incompetent. It is accordingly struck out.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the Lead Judgment of my Lord HARUNA SIMON TSAMMANI, J.C.A. just delivered. I agree with my Lord’s analysis and conclusions on the issues in the Appeal. For the reasons so ably set out in the said Lead Judgment, I also allow this Appeal and the cross Appeal is struck out for being incompetent.
I abide by the consequential Orders made in the said Lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have read in advance the judgment read by my learned brother HARUNA TSAMMANI, I agree entirely with the reasoning and conclusion reached therein. His Lordship has dealt extensively with all the issues involved in the appeal. I only wish to emphasise that the law is trite that a Counterclaim is a cross-action and not a mere defence to the Claimant’s claim. It is an independent action and not part of the original action. The two causes are however tried together for convenience and to avoid multiplicity of actions A Counter- Claimant would succeed only on the strength of his case and not the weakness of the defence. He must prove his counter-claim to the satisfaction of the Court to be entitled to Judgment. See IGE VS. FARINDE (1994) 7 NWLR (PT. 354) 42; GOWON VS. IKE-OKONGWU (2003) 6 NWLR (PT 815) 38; AIR VIA LTD VS ORIENTAL AIRLINES LTD (2004) 9 NWLR (PT. 878) 298
In the instant appeal, the disputed land was a subject of litigation between the Aagba Chieftaincy Family
and Oloko of Oko Chieftaincy family both of Surulere Local Government Area of Oyo State in Suit No. HOG/35/2001. It was an action between the instant 2nd Appellant and Respondent. In that case, the lower Court found in favour of the 2nd Appellant’s family and dismissed the Respondent’s Counterclaim. The Respondent appealed to this Court in Appeal No. CA/I/131/2009. This Court found the Writ of Summons in the substantive action at the lower Court was signed in the name of a law firm and consequently struck out the Writ of Summons in HOG/35/2001 and Appeal No. CA/I/131/2009 predicated thereon. I completely agree with my learned brother that the decision of this Court in Appeal No: CA/I/131/2009 striking out the Writ of Summons filed in the lower Court did not affect the Counterclaim. The Counterclaim of the Respondent in Suit No. HOG/35/2001 had a life of its own and was independent of the substantive action in respect of which the Writ was struck out.
I agree that this appeal has merit and should be allowed. I also allow it and abide by all consequential orders in the lead Judgment.
Appearances:
R. A. OGUNWOLE, SAN, with him, O. D. ERINOSO, ESQ., and O. D. FATOLA, ESQ. For Appellant(s)
PRINCE ABIOYE OLOYEDE-ASHANIKE, ESQ., with him, S. I. ADEPOJU, ESQ., A. L. AIYEGBUSI, ESQ. and T. O. LAWAL, ESQ. For Respondent(s)