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SUIT NO. CA/L/83/89

3PLR/1990/5  (CA)



1 NWLR (Pt.165) 53





NIKI TOBI, J.C.A. (Read the Leading Judgment)



  1. CHIEF JOSEPH ABRAHAM (Onikosi of Ikosi, Idimu)
  2. ALHAJI HAZAN TAIWO ARISHE (Representing Kumoko Family of Idimu)



(Representing Madarikan Family of Idiom).

  1. CHIEF JOSHUA ALBERT AINA OLUGBEDE (Representing Aina Agberin Family of Idimu).


H.A. Lardner, S.A.N. (with him, D.U. Ufor) -for the Appellants.

  1. G. Adewole (with him, A. Fatunde) -for the Respondents.




APPEAL – Findings of fact of trial court – Attitude of appellate court.

COURT – Trial court – Competence of to rely on its own record.

COURT – Trial court – Duty of trial Judge to confine himself to issues raised before him.

CUSTOMARY LAW – Yoruba Customary Law – Partition of family prop­erty thereunder – What plaintiff must prove.

EVIDENCE – Affidavit evidence of title to land -Admissibility of.

EVIDENCE – Affidavit evidence used in previous proceedings – Whether can be relied on in subsequent proceedings.

EVIDENCE – Proof – Co-ownership of property – How proved.

EVIDENCE – Exhibits admitted in evidence and marked – Effect.

JUDGMENT AND ORDER – Writing of judgment – Proper approach thereto.

LAND LAW – Co-ownership – Claim founded thereon – How pleaded and proved.

LAND LAW – Co-ownership of property – Effect of

LAND LAW – Co-ownership of property -How proved.

LAND LAW – Declaration of title – Five ways in which title to land may be proved.

LAND LAW – Declaration of title – Burden on plaintiff claiming therefor – Whether plaintiff can rely on weakness of defence.

LAND LAW – Ownership of property – Co-ownership of property – Mean­ings of.

LAND LAW – Partition of land – Condition precedent – Effect of.

LAND LAW – Partition of land – Meaning and effect.

PRACTICE AND PROCEDURE – Pleadings – Aim of – Fact not pleaded – How treated.

PRACTICE AND PROCEDURE – Pleadings – Amendment of – Effect.

PRACTICE AND PROCEDURE – Pleadings – Bindingness of

PRACTICE AND PROCEDURE – Pleadings – Co-ownership of land in dis­pute – How pleaded.

PRACTICE AND PROCEDURE – Pleadings – Duty of plaintiff to plead all material facts.

PRACTICE AND PROCEDURE – Pleadings – Point of law – Whether can be raised in pleadings.

WORDS AND PHRASES – ‘Co-ownership’- Meaning of.

WORDS AND PHRASES – ‘Ownership’- Meanings of.

WORDS AND PHRASES -’Partition of land’- Meaning and effect.


TOBI, J.C.A. (Delivering the Leading Judgment): On 22nd December, 1976, the Supreme Court gave judgment in a compensation matter involving damage to land. That was in suit No.SC.398/75. National Electric Power Authority (NEPA) were the defendants/appellants. Mudasiru Amusa and Ayinde Amodu were the plaintiffs/respondents. They instituted the action for themselves and on behalf of all other members of Madarikan Family of Idimu village in Lagos State. It was a family land. Damage was done to the land. This was as a result of the planting of NEPA pillars for their power lines. The pillars did the damage. The plaintiffs/respondents in that suit, sued. The Supreme Court gave them judgment. The court awarded them N95,000 as compensation. Fatayi-Williams, J.S.C. (as he then was) read the lead judgment.

That 1976 judgment generated this action. There was some money. The plaintiffs/appellants saw in the award ‘community’ money. And this to them, covered and extended to the Kumoko Family. To them, it cannot be an exclusively Madarikan Family Affair. And so they sued: They asked for a number of reliefs but the fulcrum of it all was the N95,000 NEPA compensa­tion. They needed part of it. They were specific as to what they regarded as their share. They needed half of it. And this was N47,500.00. They asked for the following reliefs:

“(1)   The partition of all that piece or parcel of land known as ONIG­BEYIN FAMILY land at IDIMU, AGEGE, LAGOS STATE of Nigeria, the Survey Plan No.AAW/L/598/84 of which is at­tached, and the substantial parts of which land the defendants have sold, leased or alienated without the knowledge, authority and consent of the plaintiffs.


(2)     Vesting absolutely in the plaintiffs area ‘B’ in the Survey Plan No.AAW/L/598/84 drawn by Mr. A.A. Williams, Esquire (sic), Licensed Surveyor and which areas ‘B’ and ‘E’ are the plaintiffs’ legitimate half share of the Onigbeyin Family land according to Yoruba Native Law and Custom.


(3)     An Order compelling the defendants to pay into court within five days of the judgment of this suit, the sum of N47,500.00 (forty­ seven thousand, five hundred naira) being half share due to the plaintiffs out of the N95,000.00 compensation awarded by the Supreme Court in suit No. 398/75.


(4)     An Injunction restraining the defendants, their agents, privies and servants from further selling, leasing, wasting, destroying, alienating any part of the land and or otherwise interfering with the rights of the plaintiffs on the land.”


And so these were the reliefs. Well couched and well framed. But when we pull aside the curtain of the legal phraseology, and legal semantics we see the immediate cause of this action. We also see the truth. And I repeat, it is the N95,000.00 compensation. That is, relief No.3, though. It takes the third position. I would not like to think that the reliefs are in order of priority. They are more in order of chronological sequence or so. I may be wrong. But that is not important. The important thing is that the defendants/respon­dents did not agree that the plaintiffs/appellants were entitled to any relief, including the half share of the N95,000 compensation they asked for. To them, the land on which NEPA paid compensation was that of their family. The defendants/respondents had no rights on it. They therefore joined is­sues with them. And this was, as usual, from the pleadings stage. Both par­ties duly filed their pleadings. These were exchanged and the matter went to trial.


I would like to pause here and deal briefly with the pleadings filed. For now, it is not the contents but the amendments and all that. Let me quickly take the pleadings dates. The Statement of Claim was filed on 3/8/84. The Statement of Defence was filed on 4/10/84. It was for the 1st to 4th defen­dants/respondents. On 15/10/84, a reply to the Statement of Defence was filed. On 28/1/85, another Amended Reply to Statement of Defence was filed. On 17/1/85, the first Amended Statement of Defence was filed. On 25/ 3/85, a Reply to the 1st Amended Statement of Defence was filed. On 30/5/ 85, the plaintiffs/appellants yet filed another Amended Statement of Claim. Following the joinder of the 5th defendant a Statement of Defence was filed on 17/9/85. And so the matter was a victim of a plethora of amendments. I am not quite sure that I have got the dates properly. There is a mix up in the Records. But the dates are really not material for our purpose but the amendments are. It appears to me that the final amendment to the State­ment of Claim was dated 30/5/85. It is made up of 15 paragraphs. See pages A41 to A46 of the Records). Those are the pleadings as they stand.


Let me pause here to say one or two words on amendment of pleadings. Amendment of pleadings is part of the judicial process and we cannot run away from it. We cannot even avoid it. The courts are mostly receptive to ap­plications for amendment. They accommodate applications for amendment most of the time. Apart from the understandably relaxed and accommodat­ing nature of our adjectival Law on the issue, courts of law, by their nature and institutional upbringing are reluctant and loath to shut their gates against willing litigants midstream in the presentation of their claims and rights in terms of available facts. Since that is not consistent with the basic rules of fair hearing and natural justice, the courts, in most cases, grant ap­plications for amendment of pleadings.


Amendments arise because of a number of reasons. I can identify four main reasons here. First, at the time of filing the pleadings, the factual situ­ation sought to be amended was not available or if available was not within the reasonable anticipation of the party and his counsel, employing all dili­gence and intellectual resources at their command. Second, although the factual situation sought to be amended existed at the time the pleadings were filed, human idiosyncrasies, human lapses and human frailties resulted in its non-inclusion. This could either be the fault of the party or counsel or both. . Third, when there is a Reply to either the Statement of Claim or the State­ment of Defence. Four, when the court suo motu raises a factual situation. Since this last reason is not consistent with our adversary system, a trial Judge should only resort to it when it is absolutely necessary so to do and in the overall interest of the parties. He cannot do so willy nilly and by his whims.


In whatever way or form amendment takes, the point remains that it protracts the already protracted judicial process. And this is worrying. Ap­plications for amendments eat so much useful and valuable time in the judi­cial process. While I concede the point that amendments are inevitable in the judicial process, trial courts should be worried at the regularity and spon­taneity of applications for amendments. And they are really worried.


The situation is not as hopeless as that. While applications for amend­ments cannot be totally avoided in the judicial process, they could be re­duced to a manageable level, as opposed to the present trend where they are in annoying proliferation. Let me proffer some solutions. And I think they can help to some extent, if not to all extent. Litigants and counsel who do their work diligently will certainly reduce the frequent applications for amendment. So much of it can be avoided if both counsel and his client are intimately involved in pre-trial factual investigations and inquiries before going into litigation and filing their pleadings. Counsel, on his part, can re­duce the frequency of applications for amendment if he takes pains during chamber pre-litigation interviews, to ask and seek for relevant information, oral and documentary, from the client.


There is also the collateral aspect of the matter and it is this. The client on his part, has a duty to surrender all the facts of the case and I really mean all the facts of the case (including incriminating and exculpating evidence) to his counsel. I say this because one of the basic causes of frequent application for amendment is that some clients are of the habit of dishing out half truths to their counsel or deliberately give facts in installments, only to get stock in open court to the embarrassment of counsel. That is not right. No party has any right to either adulterate the facts of a case or give facts to counsel piece meal.


I have taken the trouble to add this bit because I am not quite impressed with the series of amendments of the pleadings. I am of opinion that some of the amendments could have been avoided if some amount of diligence was exercised, and here I point my accusing finger more to the parties than coun­sel.

I now go to the facts very briefly. The plaintiffs/appellants case is that the defendants/respondents and themselves have a common ancestors from Aina Aisho. After giving traditional evidence and tracing the genealogical tree from Olaitan, they said that when the respondents put in a claim for compensation to NEPA in respect of damage done to the land in dispute, they protested. NEPA was warned not to pay the compensation to the de­fendants alone as the land damaged belonged to Onigbeyin Family of which the appellants were the male descendants. All their efforts to stop the pay­ment of the compensation to the respondents failed. At the end of the day, the sum of N95,000.00 was paid to the respondents. This was after the Sup­reme Court litigation in suit No. SC.398/75. They now asks for half of that amount, which arithmetically comes to N47,500.00.


On the other hand, the case of the respondents is that the land in dispute is exclusively the property of the family – Madarikan family. They also gave traditional evidence tracing their genealogical tree from Olaitan, who they claimed migrated from Abeokuta. Olaitan died leaving him surviving Madarikan and Otale. According to their evidence, Otale died childless and so Madarikan inherited the entire land. That, briefly was the case of the 1st to 4th respondents.


The 5th respondent in his evidence said that Madarikan was his grand­father and that Madarikan was begat by Olaitan. While agreeing that he does not know the history of the Onigbehin family, he disagreed that the land is referred to as Onigbehin land.


After considering the facts of the case and the law involved, the learned trial Judge did not believe the story of the appellants. Rather, he believed the story of the respondents. This is what he said:


“From the testimonies and the dates given above it is polarised that the plaintiffs and 1st to 4th defendants did not have a com­mon ancestor. The evidence of the plaintiffs connected their re­lationship with the defendants as having same original father through two mothers. On the contrary the defendants story runs parallel without any meeting point. The defendants took the posture of their progenitor to be Olaitan and this stand was con­stant throughout the trial.”


After pointing out what he regarded as contradictory evidence, the learned trial Judge came to the conclusion that the appellants were unable to dis­charge the burden placed on them by law. He dismissed the claim. In his words:


“In conclusion 1 hold that the plaintiffs have not discharged the burden cast upon them… All the claims of the plaintiffs are dis­missed in their entirety for the reasons stated above.”


Being dissatisfied with the judgment, the appellants have appealed to the court.


In their Amended Notice of Appeal, the appellants filed six grounds of appeal. Briefs were duly filed and exchanged. The appellants raised the fol­lowing issues for determination in their brief:


“1.     Whether where a plaintiff pleads facts showing that a particu­lar land was owned originally by a common ancestor of both parties (and as such the family property of both parties), is it not wrong for the court to refuse a claim for the partition of the land on the basis that co-ownership or joint ownership of the land with the defendants was not pleaded by the plaintiff?


  1. Where pleadings have been amended is it not wrong for a trial court to make use of and rely on the original pleadings of the plaintiffs and the affidavit evidence used in previous interlocut­ory applications in arriving at a final decision in the case before it?


  1. Whether the approach of the learned trial Judge to the evi­dence and the pleadings is not contrary to the Odofin and Ajiboye cases?


  1. Whether the imaginary scale can be evenly weighted in respect of an issue on which it is correct in law that where the imaginary scale is evenly weighted on an issue the plaintiffs’ case had failed? 5. Whether the judgment is not against the weight of evidence and some of the findings of the learned trial Judge are not impro­per and wrong?”

Learned counsel for the respondent said that the above issues are adequate. He therefore adopted them. Learned Senior Advocate for the appellants, Mr. H.A. Lardner, adopted his brief and made oral submission in court in expatiation thereof. On issue No. 1, learned Senior Advocate submitted that since the pleadings of the appellants show that the line of descent of the parties is from a common ancestor or founder, Onigbeyin (otherwise known as Olaitan) who was the original owner of the land, on the death of Onig­beyin intestate, the land devolved in perpetuity to his heirs who include all the parties to this suit as family property. He contended that family property under Yoruba customary law is jointly owned or co-owned by all the family members, and that until it is partitioned, there is still a common interest or joint ownership by all the family members. He relied on Olowosago v. Adebanjo (1988) 4 N. W.L.R. (Pt.88) 275, Lewis v. Bankole (1908) 1 N.L.R. 81 and Lopez v. Lopez (1924) 4 N.L.R. 50.


On Issue No. 2, Counsel submitted that the learned trial Judge was in error in making use of the original pleadings on the face of the amended pleadings as well as making use of contents of affidavits and counter affidavit in arriving at his final decision. Calling in aid Ezeoke v. Nwagbo (1988) 1 N.W.L.R. (Pt.72) 616 at 627, counsel submitted that a miscarriage of justice was occasioned to the appellants by what he termed the error of the learned trial Judge.


On Issues Nos. 3, 4 and 5, counsel submitted that the learned trial Judge din not properly evaluate and consider the totality of the evidence led by the appellants but drew wrong inferences and conclusions and followed a wrong approach in his consideration of the evidence, issues of fact, and findings of facts in his judgment. To the learned Senior Advocate, the proper approach which a trial court should follow as to issues and findings of fact is (i) set out the claim, (ii) decide on and set out the issue (in dispute) arising from those pleadings, (iii) consider the evidence in proof of each issue, (iv) decide on which side to believe, his belief being based on the preponderance of credible evidence and the probabilities of the case, (iv) record his logical and con­sequential findings of facts, and (vi) discuss the applicable law against the background of findings of fact. He relied on Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451 and Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182 at 209. Relying further on Iwenofu v. Iwenofu (1975) 9-11 S.C. 79 and Fashanu v. Adekoya (1974) 6 S.C. 83 at 91, learned counsel contended that the learned trial Judge devoted more time on pointing out the weaknesses in the case of the appellants than considering and evaluating those of the re­spondents. To him, that was not properly balancing the evidence of the par­ties’ witnesses. He further referred to Owoade v. Omitola (1988) 2 N. W. L. R. (Pt.77) 413 at 420 – 422.

On Exhibits 2 and 11, learned Senior Advocate submitted that the con­tents therein were enough to enable the learned trial Judge reach proper findings as to who are the members of the Onigbeyin family and as to whether Onigbeyin was the parties’ common ancestor or not without the pleadings or evidence in the NEPA case. Submitting further that the facts contained in the two exhibits are admissions by Amusa Omoroga against the 1st to 4th defendants interest in the land and are evidence of the truth of facts asserted in them, counsel called the attention of the court to Ogunnaike v. Ojayemi (1987) 1 N.W.L.R. (Pt.53) 760, Seismograph v. Eyuafe (1976) 9 and 10 S.C. 135. He also relied on Section 20 (1) and (3) of the Evidence Act. Relying on Woluchem v. Gudi (1981) 5 S.C. 291 at 326, Balogun v. Akanji (1988) 1 N. W.L.R. (Pt.70) 301 at 302 and Abosomwan v. Merchantile Bank of Nigeria Ltd. (No.2) (1987) 3 N.W.L.R. (Pt.60) 196 at 208, counsel con­tended that this is a case where this court can interfere with the findings of the learned trial Judge on the ground that he failed to appreciate the weight of Exhibits 1, 2, 4 and 11 and to consider the evidence. To counsel, the fai­lure of the learned trial Judge to properly evaluate the totality of the evi­dence before him renders his conclusions faulty and erroneous. He urged the court to allow the appeal.


Learned counsel for the 1st to 4th defendants/respondents also adopted his brief and made oral submission in support. On issue No. 1, learned coun­sel submitted that since the learned trial Judge held the opinion that co-own­ership of the land was not pleaded, it was the duty of the appellants to direct the attention of the court to the particular paragraph where it was pleaded. Although the pleading of the appellants show the line of descent of the par­ties to an alleged common ancestor, the pleadings nowhere alleged that all children of the alleged ancestor inherited the land. To counsel, the status of land cannot remain the same in perpetuity as alleged in the brief of the ap­pellants. It is therefore not enough to prove that land belonged to an original ancestor who died intestate. The status of the land at every stage must be proved by the appellants, counsel contended. Counsel finally submitted on the issue that since joint-ownership, the pre-condition to partition, was not pleaded, the learned trial Judge was right in his findings.


On issue No. 2, counsel pointed out that it is wrong to say that the learned trial Judge arrived at a “final decision” by using the original plead­ings and affidavit evidence used in interlocutory applications during the trial. All that the learned trial Judge did, counsel said, was to use the pleadings and affidavit of the appellants on the court’s records to test the veracity of the evidence of the appellants witnesses. It was the further contention of counsel that the fact that pleadings have been amended does not mean that they have been vacated or expunged from the records of the court. The re­cords are still there for the use of the court, counsel argued. He called the at­tention of the court to Salami and others v. Oke 18 N.S.C.C. (Pt.II) 1173; (1987) 4 NWLR (Pt.63) 1 and Owoade v. Omitola (1988) 2 N.W.L.R. (Pt.77) 423.


On issues Nos. 3,4 and 5, counsel submitted that the learned trial Judge properly evaluated and considered the totality of the evidence led by the ap­pellants. Although Oputa, J.S.C. in Adeyeye v. Ajiboye (1987) 3 N.W.L.R. (Pt.61) 432 at 541 and Onwuka v. Ediala (1989) 1 N.W.L.R. (Pt.96) 182 at 209 recommended a standard approach to judgment writing he did not com­mand that the approach recommended by him must immutably be followed by trial Judges in every case, counsel argued. He submitted further that the approach of the learned trial Judge was substantially in accordance with the approach recommended by Oputa, J.S.C., in so far as the peculiar cir­cumstances of this case warranted. Counsel took pains to examine the evi­dence before the court and the findings of the learned trial Judge. He relied on Aromire v. Awoyemi (1972) 1 All N.L.R. (Pt.1) 101. Arguing the addi­tional grounds in support of the judgment of learned trial Judge, Counsel submitted that there is abundant evidence that the appellants did not prove any acts of ownership or occupation of the land. Apart from paragraph 3 of the amended statement of claim where the appellants pleaded the exclusive possession of Kumoko, the appellants nowhere in the Statement of Claim pleaded any acts of ownership or joint ownership, counsel contended. He fi­nally urged the court to dismiss the appeal.


Since the grounds of appeal are adequately subsumed in the issues for­mulated for determination, I should confine myself to the issues only. This will certainly avoid prolixity. Let me take the first issue, which looks to me a double – barrelled one. I say this because it involves both adjectival law as well as substantive law. I will take both. But first, the adjectival aspect of it. And that relates to the pleadings.


The first basic principle of the law of pleadings is that parties are bound by their pleadings. They cannot move out of their pleadings. They cannot abandon their pleadings and make a case completely different from their pleadings. They cannot detract from their pleadings at will and in the exer­cise of the spontaneous dictates of their will. See Nkanu v. Onun (1977) 5 S.C. 13, Ekpoke v. Usilo (1978) 6-7 S.C. 187. Abaye v. Ofili (1986) 1 N.W.L.R. (Pi.15)134, Mohammed v. Ali (1989) 2 N.W.L.R. (Pt.103) 349.


Flowing from the above basic principle is the further principle that facts not pleaded go to no issue. The trial Judge has no business with such facts. He cannot make use of them in his judgment. They are moribund and of no probative value. See generally Total v. Nwako (1978) 5 S.C. 1, African Con­tinental Bank v. Attorney-General of Northern Nigeria (1967) N.M.L.R. 231, Egonu v. Egonu (1978) 11-12 S.C. 111, Piaro v. Tenalo (1976) 12 S.C. 31.


One fundamental aim of pleadings is to give notice to the adverse party of what he is going to meet at the trial. He should not be kept in the limbo. He should not be in dark. He should not be kept in abeyance. He is entitled to know the case of the opponent well before trial commences. And so when a part;, states his case in his pleadings, he cannot depart from it, unless the court allows him to do so. And the court can allow him to so depart by allow­ing an amendment to the original pleadings. And this must be based on an application. If parties are allowed to move in and out of their pleadings at will, the litigation will be more of a game of speculation, particularly as it re­lates to the facts relied upon by parties. If parties are allowed to move in and out of their pleadings, then there will be no end to litigation as they can freely introduce mid-stream any issue not pleaded to the disadvantage and surprise of the adverse party. That will be over-reaching the adverse party. That is not right. No, not at all.


A plaintiff has no legal right to installment the facts he intends to rely upon at the trial by miserly and discreetly keeping some away from the area of pleadings. He must plead all the facts he intends to rely upon. He has to place all the relevant and material facts he intends to rely upon at the trial in proof of his claim. Of course he is entitled to keep the evidence in proof of the facts under lock and key until the matter is heard. But the facts, he can­not. Certainly, not. Above all, a plaintiff has no legal right to tantalize the defendant with his pleadings and place him in the most uneasy position of speculating what he is likely to meet at the trial. No law known to me gives him such a right.


So far so good. Now to the factual position. Learned Senior Advocate in his brief relied further on paragraph 4 of the Amended Statement of Claim and paragraph 3 of the Reply to the 1st Amended Statement of De­fence, in addition to paragraphs 1, 2, 5, 6, 7 and S of the Amended Statement of Claim, in respect of the appellants contention of co-ownership/joint own­ership. The said paragraphs aver as follows:


  1. The plaintiffs sue for themselves and as representatives of Kumoko Family c/o No. 26, Ikosi Compound, Idimu, Agege Local Government Area, Lagos State of Nigeria.


  1. “The vast tract of Land” now sought to be partitioned into two parts originally belonged to Olaitan Onigbeyin, the ancestor of the plaintiffs.


  1. Olaitan Onigbeyin had two wives namely:-


Efunsanmi and Aina Ala also known as Sangotola.


(a)     Efunsanmi begat Kumoko (m) who begat Togun (m). Togun (m) begat:­


(1) Omokole (f) (2) Olatomi (f)


(3) Ilupokiki (f) and (4) Odu Arishe (m).


Odu Arishe begat:-

(1) Folaranmi (f) mother o€ Joseph Ab­raham, the 1st plaintiff.


(2) Abudu Arishe who begat

(i) Alhaja Asanotu (f) (ii) Alhaji Taiwo Arishe, the 2nd plaintiff. (iii) Alhaja Kehinde Osenatu and (iv) Mod­inatu.


(3) Animotu (f) who begat Sefinatu (f).

Ilupokiki (f) begat:- Oshunfunmike (f) who married Olukeye (m) and begat Remilekun (f) who begat Ayinde Amodu (m) (b) Aina Ala (f) also called Sangotola begat Aina Aso who mar­ried Osolekan at Ejigbo and begat (1) Aina Agberin (2) Madarikan and Otanle who died without issue. Aina Agberin (f) begat (1) Ikubaje (m) (2) Olo-Osi (f) who begat Imosi (f), who begat (1) Adisatu (f) (2) Orisarinu (f) (3) Alabi (f) Yinusa (m) and Sabitiyu (f) Orisarinu (f) begat chief Josuah Albert Aina Olugbede the 5th defendant, representing Aina Agberin Family.


Madarikan left his father at Ejigbo to live with Onigbeyin his maternal grand-father at Idimu where he. Madarikan, married and begat (1) Odunsi (m) (2) Dada Ori (m) (3) Omotorisha (f) (4) Olorunfunmi (m) (5) Ilo (m) and (6) Fasesan (m).


  1. In Yoruba Native Law and Customs any male descendants of Onigbeyin ought and should be the head of his family and the custodian of his real properties. In this case the female descen­dants have usurped the headship of the family.


  1. In 1970 or thereabout, the National Electric Power Authority’s (NEPA’s) transmission lines were traversed through the said Onigbeyin land. And when the defendants alone put up a claim for compensation for the area of land occupied, the plaintiffs warned NEPA not to pay them (the defendants) because the land belongs to Onigbeyin Family, of which the plaintiffs are the male descendants.


  1. Consequent upon the warning to NEPA, one Amusa Omoroga, father of the defendants and Ayinde Remilekun Amodu, repre­senting Kumoko Family made a “Declaration of Title to Land” in a sworn affidavit at the Ikeja Magistrates Court on January 28, 1971.


  1. The genealogy of Onigbeyin Family traced in the Sworn Af­fidavit referred to in paragraph 7 above agrees in material par­ticulars with paragraph 4 (a) and (b) above. The Certified True Copy of this Sworn “Declaration of Title to Land” will be tendered at the trial.


On the other hand, paragraph 3 of the Reply to the 1st Amended Statement of Defence, aver:


“3.     The genuine story about Ilo is as follows:­


(i)      Ilupokiki (f) daughter of Togun married Jagun (m) at Onig­bongbo and begat Ibisimi (f) (not Ibitomi) for him Jagun. Ilupokiki divorced Jagun, returned to Idimu, and married Seriki who begat Osunfunmike (f), the mother of Ayinde Remilekun, Ade (f), and Liadi (m). Ibisimi stayed with her father Jagun at Onigbongbo.


(ii)     Kobore, mother of Olorunfunmi and Ilo was a native of Onig­bongbo. Ilo begat Sadiku who begat Alhaji Sura Sadiku who was once called out in open court by the defence.


(iii)    Ilo visited his mother’s house quite often at Onigbongbo and fraternised with Ibisimi who in turn always embraced him Ilo, as her uncle from Idimu. In the process, Do put Ibisimi in the family way and gave birth to a son named Oduntan by Jagun. It was a big and unprecedented scandal. Ilo’s “beastly behaviour” was a taboo in the Onigbeyin Family, and also amongst the people of Idimu and the Yorubas. Consequently Do was expelled from the family and was driven out of Idimu.


(iv)    Three years after Do’s expulsion from Idimu, Olorunfunmi his senior brother made passionate and consistent supplications to the Onigbeyin family and elders in the area for Ilo’s pardon and forgiveness.


(v)     And in order to placate and appease the “god” of Onigbeyin Family, Olorunfunmi bought a big ram which was tied to Ilo’s waist. He, Ilo, was taken to “Egungun” shrine in the presence of all members of Onighehin Family. A particular song was re­nder-d, and Do danced round the Egungun Shrine with the ram tied to his waist. This “Song” will be rendered in court.”


I have carefully read the above averments. While paragraphs 1, 2, 4 and 8 deal with traditional history by tracing the genealogical tree, paragraphs 5 and 7 deal with the NEPA compensation affair. On the other hand parag­raph 5 avers to Yoruba Native Law and Custom, Paragraph 3 of the Reply expatiates on the traditional history already averred to in the Amended Statement of Claim. It deals with the story of Ilo.


What paragraph or paragraphs could the learned trial Judge have relied upon in respect of the claim of co-ownership or joint-ownership? I am af­raid, I do not see any of the averments in the Amended Statement of Claim that can lay an unequivocal claim to co-ownership or joint-ownership. It is not my understanding of the law that pleadings on family genealogy per se is tantamount to co-ownership or joint-ownership. In my humble view, it is not enough to narrate a genealogical story by way of traditional history to found a claim on co-ownership. If all that the appellants needed to plead to found a claim on co-ownership, was a genealogical story without more, then the concept of co-ownership has lost not only its etymological meaning but also its legal meaning and purpose in our property law. It is certainly much more than a narration of a genealogical story. What is required, in my view, is to relate the traditional history to the practical situation, where the parties have, by specific overt acts, used the land in dispute in common as joint own­ers and to their common and joint advantage. I do not see any such evidence here. The learned trial Judge did not see any such evidence also. In the cir­cumstances, the learned trial Judge, was correct, when he said:


“From the foregoing the plaintiffs have not pleaded the essential and material fact of co-ownership with the defendants a fact which is a condition precedent to a claim for partition of land.”


Learned Senior Advocate has complained against the above finding by the learned trial Judge. He argued that the learned trial Judge ought to have made use of the relevant paragraphs in the Amended Statement of Claim. With respect, that burden is unfair to the learned trial Judge. It is the function that the supreme Court said a trial Judge should not perform that was urged upon him by counsel. That was in the case of United Bank for Africa and Another v. Mrs. Achoru (1990) 6 NWLR (Pt.156) 254. It is not the jud­icial function of a Judge to instigate parties to issues not raised at the trial. Similarly, it is not the judicial function of a Judge to suo motu make a case for the parties. Where issues are not joined, the Judge should not go into them. He must confine himself only to the issues before him. And the issues must in the first place be raised in the pleadings. In my view, the learned trial Judge was right when he found that the issue of co-ownership was not pleaded. He is correct, and I so hold.


While I come to the conclusion that the appellants did not plead co­-ownership, I should not be taken as making the point that they should have included in their pleadings, the legal word of co-ownership or its synonym joint-ownership. That is not what I mean. As a matter of law, a party cannot plead law in his pleadings. Although there are exceptions here and there to this general principle of law, particularly as it relates to the plea of some specific defences to certain actions, the matter before me, does not extend to that. All that the appellants were expected to do was to plead enough facts upon which the law of co-ownership can stand and keep its shoulders high, awaiting the lawyer to replenish it with either statutory authorities or de­cided case. But that was not done here, and the trial Judge, could not have supplied it.


I now move to the substantive law and it relates to the claim of partition vis-à-vis co-ownership. Yoruba customary law recognises partition as one way of alienating family property. The case law is in great proliferation see for example Lewis v. Bankole (1908) 1 N.L.R. 82, Sale v. Ajisegiri 13 N.L.R. 146. In the Matter of the Estate of Edward Forshter (1988) 14 N.L.R. 83; Alhaji Olowosago and Others v. Alhaji Adebanjo and others (1988) 4 N.W.L.R. (Pt.88) 275. But before a plaintiff asks for partition he must first prove that the property concerned is family property and not the exclusive property of the defendant. He must also prove that he is a member of that family. In order to succeed in an action for partition, it is not enough to prove that the property is family property without establishing the legal nexus between the plaintiff and the property in question. A mere stranger cannot successfully sustain an action for partition of family property. He will be regarded as an intruder or a busybody.


Therefore, before a plaintiff institutes an action for partition, he must prove ownership or title to the land. Ownership is a multi-referential word which does not lend itself easily to an apt or precise definition. And what is more, the issue becomes much more complex when the word is to be defined in the context of customary Land Law, such as the position we have in this matter. Generally speaking, ownership connotes the totality of or the bun­dle of the rights of the owner over and above every other person on a thing. It connotes a complete and total right over a property. The owner of the property is not subject to the right of another person. Because he is the owner, he has the full and final right of alienation or disposition of the prop­erty. And he exercises this right of alienation and disposition without seek­ing the consent of another party because as a matter of law and fact there is no other party’s right over the property that is higher than that of his. He has the inalienable right to sell the property at any price, even at a give away price. He can even give it out gratis, that is for no consideration.

The owner of a property can use it for any purpose; material, immate­rial, substantial, non-substantial, valuable, invaluable, beneficial or even for a purpose which is detrimental to his personal or proprietary interest. In so far as the property is his and inheres in him nobody can say anything. He is the alpha and omega of the property. The property begins with him and also ends with him. Unless he transfers his ownership over the property to a third party, he remains the allodial owner.


The word Co coming before the word Ownership contextually does not mean an abbreviation for company. The epithet, when used along with the word ownership has the connotation of joint-ownership. In the context of joint-ownership, the definition given above will apply mutatis mutandis to the joint owners of the property inter se. And in the context of the appellants claim, the property is owned by them and the respondents jointly. That is their claim and remains their claim.


The learned trial Judge in the course of his judgment, called in aid the I following definition of partition in Cheshire Modern Law of Real Property (12th edition) by Burn:


“Partition is a method whereby the joint possession is disunited, and its effect is to make each former co-tenant separate owner of a specific portion of land and thus terminate the co-ownership forever. Instead of holding an undivided share in the whole, each person will hold a share in severalty.”


It is clear from the above definition that the forerunner of partition is co­-ownership. That is, before a court of law can order the partition of property, there must be proof of co-ownership.


The proof of co-ownership is in my view, similar to the proof of joint ownership or joint title to land. And this takes us to the five ways of proving title to land as enunciated in Idudun v. Okumagba (1976) 9-10 S.C.277, (1976) 1 N. M. L. R. 200, as follows:


(1)     By traditional evidence


(2)     By production of documents of title duly authenticated and exe­cuted


(3)     By acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of true ownership


(4)     By acts of long possession and enjoyment and


(5)     By proof of possession of connected or adjacent land in cir­cumstances rendering it probable that the owner of such con­nected or adjacent land would, in addition, be the owner of the land in dispute.


See also Mogaji and others v. Cadbury (Nigeria) Ltd. (1985) 2 NWLR (Pt.7) 393. Fasaro and Another v. Beyioku and others (1988) 2 NWLR (Pt.76) 263. Okonkwo v. Okolo (1988) 2 NWLR (Pt.79) 632. I think a party can use the above five ways to prove co-ownership by leading evidence to establish joint or common rights over the land. For example where there is convincing traditional evidence that the land is jointly owned or commonly owned by the parties, a case of co-ownership is proved. Similarly if the plaintiff tenders documents which are jointly authenticated or jointly executed by the co-owners, a case of co-ownership is proved. So also is evidence of joint posses­sion. But, evidence of family genealogy, or traditional history, without more, cannot be held to be sufficient evidence of co-ownership.


Learned Senior Advocate also pitched his argument on Exhibits 1, 2, 4 and 11. Let me look at them in turn. First, Exhibit 1. I do not see any eviden­tial nexus between the appellants claim and Exhibit 1, the judgment of the Supreme Court. I referred to the judgment earlier. NEPA was the appellant in Exhibit 1. Certainly there was no evidence before the learned trial Judge that NEPA had any dealings with the appellants in the compensation exer­cise beyond their protest. The plaintiffs/respondents on record were Mudas­iru Amusa and Ayinde Amodu. They sued for and on behalf of the Madari­kan Family. I think I am right if I come to the conclusion that that is the fam­ily of the 1st to 4th defendants/respondents.


What is the available evidence in respect of the NEPA compensation. 1st P.W. said in evidence in-chief:


“About 14 years ago I remember that NEPA planted their pillars for their power lines on the land in dispute. When the father of defendants Amusa Olorunfunmi wanted to put in claim alone the family protested and eventually appointed Ayinde Remilekun Amodu to join the said Amusa in seeking compensation from NEPA for the family. The family jointly made a declaration of their family interests in a document executed in court at Ikeja so as to have a fair distribution of the compensation by NEPA. I can identify this certified true copy of the document in court.”


The document was objected to and counsel for plaintiffs applied to withdraw it. The court granted leave for withdrawal and the document was accord­ingly withdrawn. And so the question is: where lies the evidential value of Exhibit 1? None. Rather D. W. 1 in his evidence in-chief said:


“I know that the power line of NEPA passed through our land. It was not acquired as such. My family was paid compensation. My family did not share the compensation with the plaintiffs’ family. They were not given because they are not entitled as my family owned the land absolutely. The plaintiffs did not challenged my family as to the compensation paid by NEPA. It was in this suit that they raised the issue of compensation for the first time.”


The above evidence also ruins the claim of the appellants on the issue.


I turn to Exhibit 2. It is an affidavit deposing to title. An affidavit evi­dence of title to land is not sacrosanct, evidential value wise. Such deposition can only be admissible if it is not challenged by the adverse party. If the de­position is challenged, then the parties have joined issues and the onus is on the deponent or any other witness as the case may be, to prove by oral evi­dence the veracity or authenticity of the deposition. Exhibit 2 is yet another evidence of traditional history which unfortunately the learned trial Judge, from the totality of the oral evidences before him, rejected. I therefore hold that Exhibit 2 does not have any probative value of any record found therein.


What happened in this matter is even much more than mere reference and use of records in the court’s file. The complaint is in respect of exhibits duly tendered and admitted The law is most elementary that a court of law is most competent to make use of exhibits admitted and marked. The issue raised would appear to relate substantially to Exhibits 2 and 11. Exhibit 2 was tendered through P.W. 1. I do not see anything wrong procedurally for the teamed trial Judge to have made use of Exhibit 2. Why did the appellants tender Exhibit 2 in the first place if they did not want the learned trial Judge to make use of it? What was the real purpose of tendering the exhibit in court? And I can ask similar questions mutatis mutandis in respect of Exhibit 11.


Learned counsel for the appellants argued strenuously that affidavits and amended version of the statement of claim which the learned trial Judge did not use in his final determination affected the real question in con­troversy.


The second case is Madam Salami and others v. Oke (1987) 4 NWLR (Pt.63) 1. Both counsel relied on this case. In this case, the Supreme Court held that there is nothing fundamentally wrong with a trial Judge merely re­ferring to an original Statement of Defene. However, there is everything wrong with the trial Judge relying on original Statement of Defence to arrive at the live issues in a case where there exists an Amended Statement of De­fence. That was the lead judgment of Kawu, J.S.C.


In my view, if an amendment relates to the real question in controversy, a trial Judge has no jurisdiction to ignore it and fall back on the original pleadings which are contrary to the amended pleadings. The original plead­ings have been overtaken by events and should be so treated. But I see no­thing wrong in a trial Judge making reference to original pleadings in the course of his judgment. What should guide an appellate court is whether from the totality of the judgment of the learned trial Judge, he was influ­enced by the affidavits in previous interlocutory proceedings which are not relevant in arriving at findings and final decisions. As long as a party has ten­dered an affidavit used in a previous proceedings, whether interlocutory or final, a trial Judge is competent in law to make use of it in arriving at a deci­sion one way or the other on the live issues before him. That apart, it no more lies in the mouth of counsel to raise that point as it relates to Exhibit 2. After all, it was his client who tendered it. Can he really in law seriously raise the issue? I think not.


The major issue which has arisen from the learned trial Judge’s refer­ence to the original pleadings is the apparent discrepancy in the names of Onigbeyin and Olaitan Onigbeyin, a discrepancy which he said “shrouded in mystery.” While the point is conceded that the learned trial Judge, with re­spect, was fairly indiscreet in his reference to the original statement of claim on the issue of nomenclature, it is clear that the evidence as to the discre­pancy in the nomenclature could be gathered from other documentary and oral evidence outside the original statement of claim. And in this regard, Exhibit 2 is relevant.


Let me take issues 3, 4 and 5 together since learned counsel also took them together. One major and central complaint of counsel is in respect of the way the learned trial Judge wrote his judgment vis-à-vis his evaluation of the totality of the evidence before him. While I agree that a judgment should have certain vital features and characteristics, I do not believe that a trial Judge must be regimented to a strictly laid down pattern beyond which he can only go on pain of punishment by way of setting his judgment aside on ap­peal. A trial Judge is not a child in a kindergarten class who must be led by the nose and the hands to write or recite a rhyme in unison or in union to the strictest details of the words and the letters and the punctuation marks. It should not be so. A trial Judge, the highly respected professional that he is should be given some freedom in the method of writing his own judgment. After all, writing of judgment is a matter of the personal style of the indi­vidual Judge. A Judge can develop his own “house” style and as long as that style is not outrageous, an appellate court cannot raise its eyebrows. Al­though it is neater to follow some generally set down pattern and methodol­ogy in the judgment writing process, an appellate court, in my humble view, is not competent to throw out a judgment of a trial Judge merely because it failed to follow the set down procedure. What an appellate court should be interested in, is whether from the entire judgment, justice has been done to the parties and in considering this package of justice, an appellate court should not be myopically interested in pockets of irregularities in the judg­ment but the totality of it all. I should perhaps go further to make the point that once the trial Judge has been able to bring out clearly the issues for de­termination, the case of the parties adequately summarised without any de­testable embellishments, the argument of counsel and a careful and unbiased evaluation of the evidence, a judgment should not be subjected to an appel­late attack to the extent that it must be thrown out.


While I concede the point that the method adopted by the learned trial Judge was not the most elegant, I am of opinion that justice was done to the parties. I do not agree that the learned trial Judge wrongly evaluated the facts before him. He did not. He dispassionately evaluated the facts before him and arrived at findings which were clearly borne out from the evidence in court.

Learned counsel has urged us to interfere with the findings of the learned trial Judge. I cannot do so. This court has not the eagle eyes of the trial court to watch the demeanour and actions and inactions of witnesses in the witness box. This court has not the loud ears to hear the evidence of wit­nesses in the witness box. And so this court has to rely on the findings of fact of the learned trial Judge, unless wrong inferences have been drawn (see Ugwu v. Ogbuzum (1974) 10 S.C. 191) or the findings of fact are perverse (see Ajuwa and others v. Odili (1985) 2 N.W.L.R. (Pt.9) 710; Ebba v. Ogodo (1984) 1 SCNLR 372; Akire v. Obaseki and others (1986) 1 NWLR (Pt. 19) 735.


It is trite law that in land matters, in particular, the plaintiff cannot rely on the weakness of the case of the defendant, but must rely on the strength of his own case. This is because the weakness of the defendant’s case cannot, as a matter of general principle, add strength or credibility to the case of the plaintiff. The plaintiff has to stand or fall by his own case.


In view of the fact that the appellants failed to prove their case in the lower court, this appeal fails. I therefore dismiss it accordingly. I award N450 costs in favour of the respondents.


ADEMOLA, J.C.A.: I agree with the judgment just read in this appeal, I have nothing to add.


I also award the cost of N450.00 in favour of the respondents.


KALGO, J.C.A.: I have had the advantage of reading the draft the judg­ment just delivered by my learned brother Tobi, J.C.A., and I agree with the reasoning and conclusions reached therein. The issues for determination in the appeal were clearly addressed in the said judgment and I have nothing to add thereto. I accordingly agree that the appeal lacks merit and I dismiss it with N450.00 costs in favour of the respondent.


Appeal dismissed.


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