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BINUTU AND ANOTHER
IN THE SUPREME COURT OF NIGERIA
JANUARY 22ND 1988
(1988) 1 S.C. 136
BEFORE THEIR LORDSHIPS
EBENEZER BABASANYA CRAIG, JSC
ANDREWS OTUTU OBASEKI, JSC
MUHAMMADU LAWAL UWAIS, JSC
SAIDU KAWU, JSC
ABUBAKAR BASHIR WALI, JSC
Chief T. A. Oyagbola (with him Miss I. Chakpo, I. K. Ezechuckwu and S. Adeyegbe) – for the Appellant
Chief A. Fadayiro (with him A. Fadayiro) – for the Respondents
LAND LAW- Declaration of title
EVIDENCE- . S.45 Evidence act –
Land Law – Declaration of title to land – Proof of entitlement to – S.45 Evidence Act applicability of.
Practice and Procedure – Appeals – Findings of fact by trial court – When appellate Court may interfere and make an order of retrial – Principles governing.
PRACTICE AND PROCEDURE – Findings of fact – when appellate court will interfere
WALI, J.S.C. (Delivering the Lead Judgment):
The plaintiffs, in representative capacity for and on behalf of themselves and Akinyele Family of Imeko filed the present suit against the defendant in the defunct High Court of Western Nigeria, Abeokuta Judicial Division (now Ogun State) claiming for –
“1. Declaration of title to a piece or parcel of land situate lying and being at Imeko Egbado Division, Ogun State.
The claims were denied by the defendant. Pleadings were ordered, filed and exchanged and issues joined. At the end of the trial in the High Court the plaintiffs’ case was dismissed; and aggrieved by the decision, they lodged an appeal against it in the Court of Appeal, the appeal was allowed with direction that the case be retried by another judge of Ogun State High Court, with liberty to the parties to amend their pleadings if they so desired.
After obtaining leave of this Court, the defendant appealed against the judgment and order of the Court of Appeal and with his Notice of Appeal he filed 6 Grounds of appeal. Briefs of arguments were filed and exchanged by the parties, and on the day the appeal came up for hearing, the defendant abandoned ground 1 and was struck out. On the plaintiffs’ preliminary objection both grounds 2 and 5 were also struck out, thus leaving the defendant with only grounds 3,4 and 6.
It is pertinent to state in brief the facts of the case as set out in the pleadings filed by the parties. Starting with the plaintiffs, they stated their case as follows – Akinleye was their progenitor and a farmer who first settled on the large portion of the land In dispute. At the time Akinleye first settled on the land it was then a virgin land. Meko was the native town of Akinleye’s mother Elefunde. He left Ketu to live with his mother who was at were before he finally moved and settled on the land, part of which is now in dispute. He begat Ibikunle, Abiyo, Ajuwon, Ajagbo, Tella, Elemiye, Ebo, Lapata, Olatotan, Kuyomi and others. At the time he (Akinleye) left Ketu for Meko to settle, he carried with him Faya Ikuapo, Adu, Onlu, Agbogigi, but only Adu and Agbogigi got to Meko with him to settle there while Ikuapo settled at Idofa.
Akinleye later cleared the bush at Isale Bode, built a house there and cultivated the rest of his acquired land together with his children. He was made Balogun of Meko. Isale Bode Quarters shared common boundary with Ijinna Quarters. On his death about 100 years ago his surviving children inherited the house and the land which they continued to cultivate without any interference from any one. All the surviving children of Akinleye built houses In Isals Bode. After the death of Akinleye one Bello came to Ajagbo, one of the surviving sons of Akinleye, to beg for a land to build a house and was given; so also Fatunbi, Adeyori, Sunday Ogundipe, Olaleys and others (were granted portions of Akinleye’s land by Ajagbo) on which they built their houses.
The children of Akinleye and their descendants continued to remain in possess-ion, exercising all acts of ownership on the land settled by their ancestor Akinleye, without any disturbance from any one.
In 1942, Ajagbo, on behalf of Akinleye family made a grant of a portion of the family land to the Methodist Mission on which the Mission built Primary and Modern Schools. At the time the grant was made to the Methodist Mission Reverend O. I. O. Oluwoie was in charge of the Mission and the grant was evidenced in writing.
The present dispute started sometime in December 1968 when Fatokun Adisa a member of the Akinleye family was granted a portion of land by the family to erect a house. When he commenced building on the portion of land granted to him, he was interfered with and disturbed by the defendant. Fighting ensued and the police settled them. The intervention by the police did not appear to have settled the dispute, so both Fatokun Adisa and the defendant were asked by one Oniseku to appear on the land in dispute for settlement, but the defendant refused to do so.
The plaintiffs gave some features of the land in dispute as follows – An Ape tree on the family land around which one Makerisa was worshipping his Omolu shrine. They further stated that the defendant, Suti Abibu is the descendant of Bello who was originally granted a portion of the family land by Ajagbo. They denied being related to Suti Abibu and Bello.
That the town of Meko was founded over 250 years ago when the settlers left the old city of Meko and that the first Oba of Meko was Okli Farayiba while Oluwoye was the first Balogun. They were the first settlers in Meko and that Okill Fa-rayiba was the absolute owner of the land at Ijinna Quarters. He further averred that Isale Bode Quarters is part of Ijinna Quarters and the Balogun Oluwoye was the absolute owner of the land in both Quarters. He said the land owned by Balogun OIuwoye was delineated red in a plan of the defendant marked Exhibit 1 and attached to the Statement of Defence.
Balogun Oluwoye beget Lanlokun Aje, Kugbuyi lyalode Ayinle, Adegble, Ladakan, Oguneletu, Fakanbi Agbesa, Olalegun, Ogundele, Pelu Ogunlowo, Ajibade, Apara, Fadunsi and some others. They are all dead but survived by their descendants. The defendant further averred that Lanlokun Aje, a descendant of Balogun Oluwoye was a good friend of Oseni of Isiki Quarters, Meko, and be-cause of that friendship, Aje granted Oseni a large parcel of land at Ijinna Quarters, which is shown and verged blue in the defendant’s plan – Exhibit 1.
The defendant averred that Oseni begat Chief Imam Bello, Chief Imam Bello begat Ayisatu and Ayisatu begat Situ Abibu (the defendant). The defendant claimed that Balogun Oluwoye and his descendants settled on the land, built houses and farmed on it without Interruption from any one. As regards the land granted to Oseni by Ajagbo he claimed that Oseni’s descendants, himself inclusive, have been In uninterrupted possession of the same without let or hindrance from anyone until the present action started.
Defendant also claimed that Ajagbo is not a son to Akinleye but followed the latter to Meko as his servant and that even before Akinleye, Ajagbo and Oba Alebiowu came to Meko from Ketu, Balogun Oluwoye had already made a grant of the land verged blue in Exhibit 1 to Oseni. He also claimed that the grants claimed to have been made by Akinleye’s family in the area verged red in the plaintiffs plan – Exhibit A were in fact all made by Balogun Oluwoye’s family and that they are all tenants to that family, both Akinleye and Ajagbo Inclusive.
The Defendant however admitted being a descendant of Chief Imam Bello, but denied that Ajagbo made a grant of any land to Bello. He in fact said Bello is the son of Oseni to whom the land was granted by Balogun Oluwoye family. And with regard to the Ape tree mentioned by the plaintiffs, defendant claimed that it was planted by his ancestor Oseni and that the shade of the same tree was used as a Moslem School.
The three subsisting grounds of appeal argued are as follows:
“3. The Court of Appeal erred in law in holding that it was open to the High Court to have granted an injunction to the area verged yellow the smaller area verged green being excepted when there was no satisfactory evidence to support this assertion and the principle laid down in Kodilirrye v. Odu 2 W.A.C.A. 336 should have been applied.
(a) The trial judge properly evaluated all the pieces of evidence as shown at page 48-56 of the Record.
(b) The Court of Appeal did not point out any Important piece of evidence not considered.”
For this appeal, both the plaintiffs and the defendant will hereafter be referred to as the Respondents and the Appellant respectively. In their respective briefs of argument, both the appellant and the respondents set down separate Issues for determination. For the appellant, the issues are stated thus:
“2.2 Did Respondents (Plaintiffs in the High Court) prove their case?
2.3 Did Appellant establish a good/or a better title?
2.5 Is Section 45 of the Evidence Act applicable in favour of the appellant?
The issues for determination contained in the respondents’ brief are more comprehensive and elegantly stated. They are as follows –
“1. Whether the learned trial Judge of the High Court was right in dismissing the plaintiffs’ (Respondents’) claim in view of the unsatisfactory nature of the Defendant’s (appellant’s) case. (Words in bracket are supplied by me).
On ground 3 of the Grounds of Appeal, limed counsel for the appellant referred to the various findings of the learned trial judge on the evidence adduced by the respondents and submitted that he was perfectly right in refusing the Injunction prayed for by the respondents.
It is pertinent here to reproduce the findings of the learned trial judge on the evidence adduced in relation to this issue:
‘There are two claims contained in the Writ of Summons and I may just as well deal first with the second leg of the claims. The plaintiffs for themselves and on behalf of the Akinleye family are asking for Injunction to restrain the defendant, his privies, agents and servants from interfering or disturbing the plaintiffs on the land in dispute.
It must be borne in mind that the plaintiffs themselves and their witnesses and in particular the 1st plaintiff did say before me that the children of Akinleye made some grants of land to some people including Bello Lemomu who is the grand-father of the defendant. To be more specific the 1 at plaintiff said it was Ajagbo his father who made grants of land to some people including the defendant’s grandfather Bello Lemomu.
Under cross-examination, the 1st plaintiff said that his father Ajagbo died about 13 years ago and he the 1st plaintiff was not there when his father made grants of land to various people and he was not born when Bello Lemomu built his house. It follows from this evidence of the 1st plaintiff therefore that the 1st plain-tiff was not born when the grant of land was made by his father to Bello Lemomu the defendant’s grandfather and he was not born when he built his house on the land In dispute either. The second plaintiff also gave evidence and said that the defendant owns a house on the land in dispute and the plaintiffs’ surveyor said so too and even went further to say that it was not a new building.
It is apposite to mention here the evidence of the 3rd witness for the Plaintiffs Amos Taiwo aged about 70 years who said that when his late father wanted to build, he followed him to one Ajagbo Akinleye who asked his father to go and clear the bush as far as he wanted. His father owned 3 houses on the land.
The house built by the defendant’s ancestors is within the land in dispute verged yellow in Exhibit ‘A’ and verged blue in Exhibit ‘B’. If the 1st plaintiff or the 2nd plaintiff was not there when their ancestor Ajagbo granted the defendant’s ancestor land and none of the plaintiffs was born then according to the evidence of the 1st Plaintiff himself, how would they have known the extent of the grant made to the defendant’s ancestor? Especially if one brings into light the evidence of the 3rd witness to the plaintiffs Amos Taiwo that when his father wanted land, presumably after the defendant’s ancestor, Ajagbo asked him to clear the land as much as he wanted. The 8th witness to the plaintiffs, the Surveyor said that the area in dispute is 3.250 acres. One is bound to ask as to whether that would the place was thick bush and when land then had little or no value? (sic). In my considered .opinion I do not think it would be too much.
From these facts that I have pin-pointed based on the evidence of the plaintiffs and their witnesses, it can meanwhile be taken that the plaintiffs’ ancestor granted land to the defendant’s ancestor and put him, in possession over 100 years ago. It must be noted that the plaintiffs themselves did not know the ex-tent of the grant made nor was there any evidence given by the plaintiff of the nature of the grant, but is that averment as contained in paragraph 12 of the Statement of Claim that the defendant’s ancestor was granted land to build a house. From all indications and deductions as disclosed by plaintiffs’ evidence, the grant was an outright grant of land assuming for a moment that the evidence of the plaintiffs is credible. On the facts deposed to by the plaintiffs, can there be any legal justification then for granting the claim for Injunction against that defendant, his privies agents and servants on the land in dispute? In my view it will be utter injustice and against the principle of equity to grant such claim.”
This was adequately answered by Uche Omo, J.C.A. in the lead judgment of the Court of Appeal where he said:
‘The plaintiffs do not need to be present or alive at the time and place of grant so as to be able to testify as to the extent of the land given by their ancestor to the defendant’s ancestor. What they gave is traditional evidence which is “permissible and admissible” hearsay evidence vide Adenle v. Oyegbade (1967) N.M.L.R. 135 (138/9). Whilst is open to the trial Judge to disbelieve plaintiffs’ traditional evidence, it is not proper for him to reject same on the ground set out on page 49 lines 15-29 complained of. The obvious speculation in lines 24-28 makes the situation even worse. No one had raised as an issue that the area of land alleged granted to the defendant is too much.”
‘The main complaint in Ground 3 is that the finding that the plaintiffs did not know the extent of the land granted to the defendant’s ancestor nor was evidence given as to the nature of such a grant, is untrue. This finding is both contrary to an earlier finding at page 49 line 3034, to the effect that defendant’s ancestor was put into possession of the land over 100 years ago; and evidence led that the grant was for the building of a house. As to the extent of the land alleged granted Exhibit A shows this clearly edged Green.
The points made by the trial judge at lines 9 to 25 on the basis of which he rejected the claim to an injunction outright before fully considering the main claim for a declaration of title, is that since the grant made to the defendant’s ancestor of the area verged green is in the nature of an outright grant, an injunction cannot be ordered to keep the defendant therefrom. Even if he were to be regarded as a customary tenant (and there is no evidence to support this), the only way he can be removed from the land Is by a claim for forfeiture. These points may be well-taken ff they are confined to the area verged green. What the trial judge lost sight of is that the claim for an injunction relates to a much larger area of land, the area verged yellow. It was therefore open to him to have granted an injunction to the area edged yellow the smaller area edged green being excepted. His failure to consider and/or appreciate this point is a misdirection on the facts before him and also constitutes an error on the law.”
It has always been the sacred duty of the trial judge to evaluate relevant and material evidence adduced before him on the issues raised in the pleadings – Alhaji A.W. Akibu v. Joseph Opaleye (1974) 11 S.C. 189. Where the trial judge fails to exercise this duty, a court of appeal will interfere with the findings of fact made by the trial judge see Y A. Lawal v. Chief Yakubu Dawodu, Fatoyinbo & Ors. v. Williams alias Sanni & Ors. (1956) 1 F.S.C. 87 and Wilfred Okpaloka & Ors. v. Ben Omeh & Anor. (1976) 9 & 10 S.C. 269.
Ground 4 deals with the applicability of Section 45 of the Evidence Act.
It was the submission of learned counsel for the appellant that since the appellant had pleaded long possession in paragraphs 24 and 25 of the Statement of Defence and the respondents admitted possession by the appellant of at least a portion of the land in dispute, and to be specific, the area verged green within Exhibit A, then the appellant is entitled to a declaration of title of the adjoining land in his favour.
Before a party can call the aid of section 45 of the Evidence Act for a declaration of title to adjoining land in his favour, he must adduce evidence in proof of positive and numerous acts to warrant the inference that he is the exclusive owner of the land. As correctly stated and observed by the Court of Appeal in its judgment, the learned trial judge made no specific findings of fact on the evidence before him from which such presumption can be made. See E.M. Alade v. Lawrence Awo (1975) S.C. 215. This observation was elaborated by the judgment of the Court of Appeal wherein it stated –
“For example, what acts of ownership/possession of land adjoining the land in dispute did he ascribe to the defendant/respondent? He referred to houses built on the western and eastern sides of Exhibits A & B “outside the land in dispute’ but did not find that these houses were built either by the defendant or by others on grant made by him. Nor did he make a clear finding in favour of the defend-ant !n respect of the land granted to the Methodist.”
The respondents admitted granting a piece of land within the land in dispute for building a house by the appellant’s grandfather. There is no such admission as giving him the whole piece of land in dispute. The respondents adduced evidence of P.W.3, P.W.4, and P.W.6 to show that they have been exercising acts of ownership both on the land in dispute and its surroundings. Although the appellant claimed that the area verged blue !n his plan Exhibit 8 was granted to his grand-father by Balogun Oluwoye (which !s identical with the land verged red in Exhibit A), he called no evidence to show that his grandfather or any of his ascendants exercised any acts of ownership on the adjoining land. None of the people mentioned in paragraph 22 of the Statement of Defence were called by the appellant to prove his positive and numerous acts of possession over the area in dispute as asserted in paragraphs 11 and 12 in the Statement of Defence. His claim to the whole area verged blue in Exhibit B, which is identical to the area verged red in Exhibit A, is made worse by his admission in paragraph 22 of the Statement of Defence that the Oluwoye family granted land to the various persons mentioned !n the area verged red in the respondent’s plan and not by his ascendants. How can this be reconciled with paragraph 12 of the Statement of Defence which stated that the grant to his grandfather was absolute! These are part of the issues which have to be resolved before section 45 can be applied in the appellant’s favour. See Higgs v. Nassan Wan (1975) A.C. 464. It !s not enough consideration of evidence adduced before a trial judge for him to use the expression “ I believe” and “I do not believe” without actually evaluating such evidence. In such a situation it is certainly the unavoidable duty of an appeal court to interfere where the failure resulted in miscarriage of justice. See Woluchem v. Gudi & Ors. (1981) 5 S.C. 291 at 306.
The 6th ground of appeal deals with the appellant’s complaint against the finding of the Court of Appeal that the learned trial judge did not consider the pieces of evidence adduced by the respondents and the appellant respectively before arriving at his conclusion. It was the contention of learned counsel that the learned trial judge did so.
The learned trial judge did not only fail to consider the evidence adduced by the appellant and the respondents, but he went further in erroneously rejecting the traditional evidence of the respondents on the ground that it is hearsay. He also failed to resolve the conflict and contradiction between the pleadings of each party and the evidence adduced In support thereof. Some of these are given as –
(a) the evidence of the defendant as D.W.1 that the land in dispute was granted to Lemomu Bello by Balogun Oluwoye which is contrary to the averment in paragraph 8 of the Statement of Defence that the said land was granted to Osen! by Lanlokun Aje, the son of Balogun Oluwoye.
(b) DW I testified that Oseni Bello is the son of Imam Bello, contrary to paragraph 9 of the Statement of Defence which averred that Oseni is the father of Imam Bello.
(c) The evidence given by D.W.2 with regard to grant of parcel of land by Oluwoye to Akinleye at Isale Bode and to Lemomu Bello at Igbo Israel.
(d) Evidence of D.W.1 as to what is on the land in dispute which is not in line with Exhibit B, the Survey plan of the land in support of his case.
(e) The learned trial judge’s failure to consider the appellant’s evidence before accepting his traditional historical evidence (if any).
(f) The learned trial judge’s failure to consider evidence of P.W.3, P .W.4 and P.W.6 called to establish positive and numerous acts of ownership by the respondents over the land in dispute.
(g) Non-production of evidence of boundaryman by the appellant or any of his grantees to establish ownership of the land in dispute by either custom or numerous acts of ownership.
(h) The learned trial judge’s speculation resulting In misdirection as to lack of Identity of the land granted by the respondents’ ancestor to the father of P. W.3.
Where there are obvious errors on appraisal of oral evidence and ascription of probative values to is or to resolve material conflicts in the evidence was wrongly rejected, or where the learned trial judge has approached the determination of acts in a manner which such facts cannot and do not in themselves support, the Court of Appeal is not only entitled but justified to interfere and set aside the findings. See Fashanu v. Adekoye (1974) 1 All N.L.R. (Part 1) 33; Ogbero Agri v Edoh Uperl (1974) 1 N.M.L.R. 22; Fabumiyi v. Obaie (1968) N.M.L.R. 242; Federal Com-missioner of Works & Housing v. R. Lababedi & 5 Ors. (1977) 11-12 S.C. 15; F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215. Obviously and taken together, the cumulative effect of these misdirections and non-directions resulted in failure of justice to both the appellant’s and the respondents’ case. See Mogaji & Ors. v. Madam Odolin & Ors. (1978) 4 S.C. 91 and Woluchem v. Gudi & Ors. (1981) 5 S.C. 291. The learned trial judge failed to make any findings on the issue or issues of fact in regard to which evidence was adduced before him, and the appeal court was perfectly right to order a retrial on these grounds. See Osayi v. lsozo (1969) 2 All N.L.R. 155 and Solomon v. Mogaji (1982) 11 S.C. 1 at 24. In the case in hand the case of Kodilinye v. Odu 2 W.A.C.A. 336 and a host of others cited by the appellant’s counsel in his brief are not relevant and therefore of no assistance to him.
The appeal lacks merit and it is dismissed. The judgment of the Court of Appeal with the orders contained therein is hereby affirmed. N300.00 costs is awarded to the Respondents.
OBASEKI, J.S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Wali, J.S.C. and I find the opinions expressed therein in total concurrence with mine on the issues raised. I will therefore dismiss the appeal and affirm the decision of the Court of Appeal which allowed the appeal to it and ordered the case to be tried de novo.
The plaintiff/respondent claimed declaration of tide to land and injunction but failed to discharge the burden of proof in such cases. The claim was dismissed in its entirety. On appeal to the Court of Appeal the appeal was allowed and the case sent back for retrial. The defendant being dissatisfied has brought this appeal seeking a restoration of the decision of the High Court the trial court dismissing the claims for declaration of title and injunction. The issues for determination formulated by the appellant are:
(1) Is the Court of Appeal competent to entertain the appeal. Has it the jurisdiction?
(2) Did the respondents (plaintiffs at the High Court) prove their case?
(3) Did the appellant establish a good and or a better title.
(4) Did the learned trial judge of the High Court commit any error and/or misdirection and if so does it occasion a miscarriage of justice?
(5) Is section 45 of the Evidence Act applicable in favour of the appellant?
(6) Is the Court of Appeal right to order a non-suit or a retrial de novo?
The first question must be answered in the affirmative. The Court of Appeal had jurisdiction to entertain the appeal as it is against a final decision of the High Court. Section 220(1) (a) of the Constitution of the Federal Republic of Nigeria 1979 confers the jurisdiction as under it an aggrieved party can appeal on grounds Involving questions of law and questions of fact.
Question 2 can be answered partly in the affirmative and partly in the negative. This is so as the burden of proof of facts discharged was not sufficient. It is be-cause neither the appellant nor the respondent is entitled to judgment. The appellant was not entitled to judgment of dismissal because the evidence on record is of such quality as to make such a decision unjust.
The third question must be answered in the negative.
Questions 4 and 5 do not arise in this appeal as the appeal is against the decision of the Court of Appeal.
Question 6 can be answered in the affirmative.
The principles governing an order of retrial are very well settled and I need only refer to the case of Yesufu Abodundu & Ors. v. The Queen (1959) 2 F.S.C. 70 at 70. This was a criminal case but the principles enunciated therein are applicable to civil cases and have been regularly applied. See Bamidele v. Adeyemi (1963) 1 All N.L.R. 146 at 148; Ayoola v. Adebayo (1969) 1 All N.L.R. 159.
1 am satisfied that the appellant is not being visited with a miscarriage of justice or subjected to injustice by the order of retrial. I am aware that a retrial is not appropriate where the plaintiff/respondent’s case has failed in toto. A retrial in this case will further enhance the course of justice.
Accordingly, for the above reasons and the reasons set out in the judgment of my learned brother, Wali, J.S.C., I hereby dismiss this appeal with N300.00 costs to the respondents.
The decision of the Court of Appeal is hereby affirmed.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment of my learned brother, Wali, J.S.C., I entirely agree with the judgment and I adopt it as mine. I have no desire to add anything.
Accordingly, the appeal is devoid of merit and it is hereby dismissed. The decision of the Court of Appeal is affirmed with N300.00 costs to the respondent.
KAWU, J.S.C.: I have had the advantage of reading in draft the lead judgment which has just been delivered by my learned brother, Wali, J.S.C. 1 agree entirely with his reasoning and conclusions and will dismiss the appeal for the reasons set out in the said judgment with N300.00 costs to the respondents.
CRAIG, J.S.C.: I have had the advantage of reading in draft the judgment delivered by my learned brother, Wali, J.S.C., and I agree with the views expressed therein.
For the reasons clearly set out in the lead judgment, 1 share the view that the order for a re-trial is the appropriate order to make in the circumstances of this case.
The appeal is dismissed and the judgment of the Court of Appeal is affirmed With N300.00 costs to the Respondents.