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IN THE SUPREME COURT OF NIGERIA
19TH JUNE, 1992.
NO. SC. 81/1987
5 NWLR (Pt. 242)410
BEFORE THEIR LORDSHIPS
GBADAMOSI ADEGOKE (substituted for Buari Ishola (deceased) for himself and on behalf of Akolemoloju family)
Chief A. Adejumo (with him, A.O. Akinbami) – for the respondents
Appeals -Appellate Court setting aside judgment of an inferior court suo motu when there is no ground of appeal on it- Whether proper-Failure of trial court to evaluate evidence – Duty of appellate court thereof.
Court – Court raising an issue suo motu – Need to hear parties.
Jurisdiction -Jurisdiction of court – When raised
REAL ESTATE – LANDLAW – Declaration of title to land – Trespass – Damages – When sustainable. Practice and Procedure – Identity of land in dispute – When properly pleaded.
PRACTICE AND PROCEDURE – Evidence – Onus of showing the area or extent of land in a title to land case – Wherein lies – Onus in Civil and Criminal cases compared.
KUTIGI., J.S.C. (Delivering the Lead Judgment).
By paragraph 21 of the statement of claim, plaintiff’s claims against the defendant read thus
“(i) Declaration of a right of occupancy to that piece or parcel of land situate, lying and being at Ikoyi Road, Ogbomosho, verged yellow (less the area verged brown) in Plan No. AK 4679A dated 7th October, 1978.
(ii) N2,000.00 damages for trespass committed by or with the authority of the defendant on the said land between 1967 and 1974.
(iii) Injunction restraining the defendant whether by himself, his servants, agent or any of them otherwise howsoever be restrained from committing any further acts of trespass on the land in dispute.”
Pleadings were filed and exchanged. At the trial each side led evidence to support its case.
The plaintiffs’ case as pleaded in their statement of claim was briefly that a vast area of land lying and being at Ikoyi Road, Ogbomosho and verged red on the plan Exhibit B was granted jointly to the plainitffs’ ancestors by one Baale (Shoun) Olawusi about 150 years ago. It was their case that their ancestor made a grant of part of the land and verged blue in Exhibit B to the defendant’s ancestor. They said the land in dispute which is verged yellow in Exhibit B did not form part of the grant which their ancestor made to the defendant’s ancestor.
In their amended statement of defence, the defendant admitted that the plaintiffs’ ancestor did grant a portion of land marked Red in Exh. B to his ancestor. He denied that the area granted to his ancestor was the area marked blue only in Exhibit B as stated by the plaintiffs. His case was that the area which was granted to his ancestor comprised the areas verged blue and Yellow in Exhibit N. The defendant also tendered judgments of Ogbomosho Grade ‘B’ Customary Court and Chief Magistrate Court, Ile-Ife exhibits E.2 & E.3 respectively, as showing acts of ownership and possession of the area in dispute. He said he had never exceeded the area granted to his ancestor by plaintiffs’ ancestor.
At the end of the trial, the learned trial judge, Ibidapo-Obe, J., after considering the evidence before him, dismissed plaintiffs’ claim in its entirety. The plaintiffs were dissatisfied with the decision of the trial court and so appealed to the Court of Appeal where their appeal was allowed. Dissatisfied with the judgment of the Court of Appeal the defendant has now appealed to this court. He will henceforth be referred to as the “appellant” while the plaintiffs will be called the “respondents”.
Briefs were filed and exchanged. They were adopted at the hearing. In his brief of argument Mr. Ogunwole learned counsel for the appellant raised three issues for the consideration of this court in the appeal. They are as follows:
“1. Whether the plaintiffs have shown the boundaries of the land which they are claiming. If the answer is in the negative, whether the Court of Appeal was right in granting declaration of statutory right of occupancy, damages for trespass and injunction.
With regard to the first issue, counsel submitted that the respondents did not plead the boundaries of the land claimed by them and thereby failed to prove its identity. He said the Court of Appeal was wrong to have held that there was no dispute about the identity of the land claimed. He referred to the judgment of the High Court page 75 lines 29 – 44 and page 76 lines 1 – 4. He said in addition, that the plans filed by the parties, Exhibit B by the respondents and Exhibit N by the appellant, were not identical. That the respondents having failed to ascertain the identity of the land in dispute their claims were rightly dismissed by the trial court and the Court of Appeal was wrong to have reversed same.
It was further submitted that it was wrong for the Court of Appeal to have awarded damages for trespass and injunction against the appellant when the respondents had failed to prove the identity of the land in dispute. We were referred the following cases: –
Epi v. Aigbedion (1972) 10 S.C.53
Odesanya v. Ewedemi (1962) 1 ALL N.L.R. 320 Ogunmola v. Bolarinwa 410 A.C.A.150 (sic). Oluwi v. Eniola N.M.L.R.339
Ezeudu & Ors. v. Onbiagwu (1986) N.W.L.R. (part 21) 208
In his reply Chief Adejumo for the respondents submitted that the Exhibit B respondents’ plan, clearly showed the land in dispute verged yellow, while the area granted to the appellant by 2nd respondent’s ancestor is verged blue. He said the complaint about the identity of the land in dispute was misconceived since both the trial court and the Court of Appeal did identity the land in dispute and that the parties were never in doubt about the identity of the land. He referred to appellant’s plan Exhibit N, the evidence of the Surveyor D.W 5 page 68 lines 15 – 25, the judgment page 75 lines 37 – 44 and to the following cases –
Akinola v. Oluwo (1962) 1 ALL N.L.R. (Pt IQ 224; (1962) 1 SCNLR 352 Karimu v. Fajube (1968) N.M.L.R.151 Maberi v. Alade & Ors. (1987) 2 N.W. L.R. (part 55) 101 Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 S.C.99.
He said all the cases cited by appellant’s counsel on the issue are inapplicable to the case.
I think the starting point will be from the pleadings and then a consideration of the evidence led at the trial. The respondents pleaded in paragraphs 3, 4, & 11 of the statement of claim as follows:
“3. The land in dispute is the area verged YELLOW (less the area verged brown) in Plan No. AK 4679A dated the 7th day of October, 1978 which land is situate, tying and being at Ikoyi Road, Ogbomosho, Oyo State of Nigeria.
The appellant on the other hand pleaded in paragraphs 3,4 & 5 of the amended statement of defence thus:
“3. The defendant in answer to paragraph 3 of the plaintiffs’ statement of claim says that the land in dispute in this suit is all that parcel of land situate and lying along both sides of Ikoyi Road, in Ogbomosho having an area of approximately 97.22 acres which parcel of land is shown and verged “RED” in Counter-Survey -Plan No.GS/122/Af76 dated the 12th May, 1979 filed with the statement of defence and which parcel of land has the following boundaries:
(i) Are-Ago (Arin-Ago) Family Land:
(ii) Akede Family Land;
(iii) Taraa Family Land otherwise known as Aborisa-Oke-Elerin Family Land;
(iv) Odo-Oru stream with Jagun-Abidodan Family Land on its other bank and
(v) Abidede Family Land.
Respondents’ Plan No. AK 4679A dated 7th October, 1978 is EXHIBIT B in the case, while appellant’s Counter-Survey-Plan No GS. 122/A/76 dated 12th May, 1979 is marked as Exhibit N. Thus according to paragraph 3 of the statement of claim above the land in dispute is verged yellow (less the area verged Brown) in Exhibit B; while by paragraph 3 of the amended statement of defence the land in dispute is shown and verged RED in Exhibit N. At the trial appellant’s surveyor who testified as D. W.5 said in evidence at page 68 lines 19 -20 of the record as follows
‘The area verged RED in Exhibit N is the same as the area edged Yellow and Blue in Exhibit ’B. ………..it is thus clear that the area verged blue in Exhibit B was the area which was accepted by both sides as having been granted to the appellant’s ancestor by respondents’ ancestor although the appellant said it also covered the area verged yellow now in dispute. (See paragraph 11 of the statement of claim and paragraph 5 of the Amended statement of defence above).
Plaintiffs/respondents surveyor Gbolahan Lajide who testified as p.w. 3 also stated on page 46 of the record that:
“In Exhibit B the area verged yellow and in dispute is 76.84 acres less the areas verged brown………
In his judgment the learned trial judge dealt with the matter on page 40 of the record as follows: –
“I have carefully examined the plans and the Counter-Plans tendered before me together with the testimony of the Surveyors who prepared them and I am satisfied that the disputed land verged yellow in EXHIBIT ’B’ is 76.84 acres or 31.095 hectares.”
So the land in dispute is verged yellow in Exhibit B. And that was respondents’ case.
The Court of appeal also found that there was no dispute about the identity of the land in this case. I think both courts were right. The respondents by their pleadings and evidence positively Identified the land In respect of which they sought for a declaration of title. The appellant also knew the land very well as revealed in pleadings and by the evidence of his own surveyor (D.W.5) It was therefore right for the Court of Appeal to have granted the declaration sought and awarded damages for trespass and Injunction against the appellant, the respondents having shown with certainty the area of land In respect of which the claim was made (See for example lbuluya & Ors. v. Dikibo & Ors. (1977) 6 S.C. 97, Akinhanmi & Ors. v. Daniel & Ors. (1977) 6 S.C.125). It is significant to note that the declaration of title in this case was based on the respondent’s plan Exhibit B in the case and on nothing else.
The order of the Court of Appeal on page 163 of the record reads
“1. It is declared that the plaintiffs are entitled to a right of statutory occupancy to that piece or parcel of land situate lying and being at Ikoyi Road, Ogbomosho verged YELLOW (less the areas verged Brown) in Plan
No.AK4679A dated 7th October, 1978 and tendered as Exhibit B in these proceedings.”
Nothing can be clearer.
I therefore answer the first question in the affirmative and say that the plaintiffs/respondents established at the trial the boundaries of the land they claimed. The second issue is whether the onus of proof of the extent of the land granted to the defendant/appellant’s ancestor was on the appellant.
Clearly this issue is very much related to the first one above. And Mr. Ogunwole conceded before us that the onus of proof of the area or extent of the grant, was on the appellant but only contended that the burden was discharged without explaining how.
I think the learned counsel rightly conceded that the onus of proving the extent of the grant made to appellants’ ancestors lay on him. Let us look at the pleadings once more. The respondents by paragraph 11 of the statement of claim stated that the area covered by the grant is verged blue in Exhibit B. The appellant on the other hand even though he admitted paragraph 11 of the statement of claim went further to assert that the grant also included the area edged yellow (and not only blue) on the respondent’s plan, Exhibit B: So that the appellant having admitted the area verged blue in Exhibit B as pleaded in paragraph 11 of the statement of claim, had the onus of proving that the grant also included or covered the area edged yellow in Exhibit B. But did the appellant discharge that burden? I think Ogundare, J.C.A., (as he then was) put it rightly when he said on page 159 of the record that:
“The evidence of the defendant and his witnesses is in my view, not cogent enough to discharge the onus on him to prove the extent of the land granted to his ancestors. He has not given the features of the boundaries of the land as at the time of the grant nor the boundary marks…. It must be that it was because he failed to show all these that made the trial judge conclude that the grant to his ancestor was “in the nature of ‘cannon shot’, stopping where he had decided to stop. “Having failed to discharge the onus on him, the trial court ought to conclude that the grant was limited to the area edged BLUE in Exhibit B – plaintiffs’ plan as conceded by the plaintiffs.”
I have also read the record and found the views expressed above to be proper. I agree with them. The appellant failed completely to discharge the onus to prove the extent of the grant made to his ancestors.
The third and final issue is whether the Court of Appeal was right in setting aside suo motu the judgment of Customary Court Grade B Ogbomosho in Suit No.180/79. Mr. Ogunwole submitted that while at the High Court the appellant tried to prove acts of possession and of ownership over the disputed land by pleading an Ogbomosho Grade B Customary Court judgment in Suit No. 180/79. The Court of Appeal purported to declare the judgment a nullity when the parties neither raised the issue of jurisdiction of the Customary Court before the High Court nor in the Court of Appeal. He said there was no appeal on the point before the Court of Appeal. It was further submitted that although under Oyo State Legal Notice No. 13 of 1978 Vol. VII Laws of Oyo State, all land within six kilometres of Ogbomosho town centre is an urban area, there was no evidence that the land in dispute qualified as an urban area to oust the jurisdiction of the customary court. He said the Court of Appeal was wrong in declaring the judgment in suit No. 180/79 a nullity without hearing counsel. The following cases were referred to
Atanda & Anor v. Lakanni (1974) 3 S.C. 109. Kuti & Anor. v. Jibowu & Anor (1972) 6 S.C. 147 Ebba v. Ogodo & Anor. (1984) 4 S.C.84.
Chief Adejumo replying conceded that there was no ground of appeal filed in the Court of Appeal in respect of the customary court judgment in suit No. 180/79. He also said the judgment was not part of the plaintiffs/respondents’ case at the trial. It was therefore submitted that even if the Court of Appeal was wrong insetting aside the judgment, the error is such that it would not vitiate its judgment.
It is settled that the issue of Jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the highest court of the land. The trial court or the appeal court can also raise it suo motu at any stage (see for example – Obikoya v. Registrar of Companies & Anor (1974)4 S.C 31;
Tukur v. Gongola State (1989)4 N.W.L.R (part 117)517)
And when a court raises a point suo motu, then the parties must be given an opportunity to be heard on the point, particularly the party that may suffer punishment as a result of the point raised suo motu (see Odiase v. Agho (1972)1 All N.L.R. (part 1)170; Ajao v. Ashiru (1973)11 Sc. 23, Atanda v. Lakanmi (1974)3 S.C. 109.
It is equally settled that a Court of Appeal can only hear and decide an issue raised on the grounds of appeal filed before it except of course where the court itself raises the issue suo motu as explained above (see Management Enterprises v. Otusanya (1987) 2 N.W.L.R. (part 55)179.
In this case there was no ground of appeal in respect of the suit No. 180/79 before the Court of Appeal. The Court did not give counsel the opportunity of addressing it especially the appellant herein who stands to suffer greater punishment as a result of the pronouncement on the said suit. The Court of Appeal was therefore clearly in error when k pronounced the judgment in Suit No. 180/79 a nullity.
In addition there was no evidence from either side that the area in dispute was within Ogbomosho urban area. The appeal on this issue therefore succeeds. The order of the Court of Appeal setting aside the Judgment is set aside.
But since the Judgments of both the High Court and the Court of Appeal were not based on the validity or otherwise of the Judgment in the Customary Court suit No. 180179 this decision will have no effect on those Judgments particularly that of the Court of Appeal.
On the whole the appeal therefore fails and it is hereby dismissed with costs of One Thousand Naira (N1,000.00) in favour of the respondents.
UWAIS.J.S.C. I have had the opportunity of reading in draft the judgment read by learned brother, Kutigi, J.S.C., and I entirely agree with him that the appeal fails save with regard to the third issue for determination formulated by the appellant. The issue complained that the Court of Appeal suo motu raised the question whether Customary Court Grade ’B’, Ogbomosho had jurisdiction to hear the land dispute in suit No. 180/79: Florence A. Adeniyi vAdisa Pabi & Anor and held that the Customary Court had no such jurisdiction; thereby setting aside the judgment of the Customary Court.
The judgment of the Customary Court was tendered by the appellant at the trial of the present case in the High Court in order to prove acts of possession and ownership over the land in dispute. No issue was joined by the parties in the Court of Appeal as to whether the Customary Court had jurisdiction to hear the suit and give the said judgment. Indeed, the judgment of the Customary Court was not the subject of appeal to the Court of Appeal. In any event, there could not have been an appeal from the Customary Court to the Court of Appeal. Furthermore, there was no issue joined by the parties before the Court of Appeal as to the validity of the judgment of the Customary Court. It is inexplicable, therefore, as to why the Court of Appeal raised the question of jurisdiction of the Customary Court suo motu and failed to ask the parties to address it on the point. I am in complete agreement with both learned counsel that the Court of Appeal was in error to have done so and to have further set aside the judgment of the Customary Court. The appeal on this issue succeeds. The order made by the Court of Appeal setting aside the judgment of the Customary Court is hereby set aside.
On the whole, however, I agree with my learned brother, Kutigi, J.S.C., that for the reasons which he has given, the appeal against the decision of the Court of Appeal fails and that it should dismissed with #1,000.00 costs to the respondents.
BELGORE,.J.S.C. I have read in advance the judgment of my learned brother, Kutigli, J.S.C., and I entirely agree with him that this appeal has no merit. I also for the reasons advanced in the said judgment dismiss this appeal with #1,000.00 costs to the respondents.
NNAEMEKA-AGU,.J.S.C. This is an appeal by the defendants against the judgment of the Court of Appeal, Ibadan Division (Coram: Onto and Ogundare, JJ.C.A., as they then were and Onu, J.C.A.), which had allowed the plaintiffs’ appeal against the judgment of Ibidapo-Obe, J., sitting in an Ogbomosho High Court.
The claim before the High Court was for a declaration of right of occupancy to a piece or parcel of land situate at Ikoyi Road, Ogbomosho, which is verged Yellow in plaintiffs’ plan Exhibit ‘B’ for trespass and injunction. The plaintiffs traced their title to Baale (Shoun) Oluwusi who granted a vast area of land, including the land in dispute to their ancestors Osiagoro Olukunle and Areagoro Lanlewu over 150 years before this dispute arose. Since then they have been exercising diverse acts of ownership over the land. Among such acts of ownership, was a grant of the area verged blue in the plaintiffs’ plan by plaintiffs ancestor, Areago Oyeyiola to’defendents’ ancestor, Lawani, about the year, 1915, for farming purposes only. They also made several other grants of portions of their land to different other people. The acts of trespass complained of were that between 1967 and 1974 the defendants went on to plaintiff’s land, sold and conveyed portion of it to several persons without the knowledge and consent of the plaintiff.
The defendant did not deny the grant by the plaintiff but said that the grant included both parcels of land verged “blue” and ‘yellow” on plaintiffs’ plan, which according to them correspond with the area verged “red” in defendant’s plan.
Commenting on the respective cases of the parties, the learned Justice of the Court of Appeal stated as follows:
“In effect, the defendant at no time denied the radical ownership of at least 2nd plaintiff’s family to the land in dispute, his contention is that that land was part of the land granted to his ancestor by the 2nd plaintiff’s family. This, to my mind, has narrowed down considerably the issues between the parties.”
In fairness to the learned trial judge, he also found that the traditional history of the land related before him was not in conflict, but that what was in conflict was the extent of the grant. On this he proceeded to find that the area granted to the defendant’s ancestor was limitless a type of “cannon-shot grant” stopping where he intended it to stop”. I agree with the learned Justices of the Court of Appeal that there was no evidence in support of that conclusion that it was a type of “cannon shot grant.”
This leaves the principal issue in this appeal: on whom does the onus of proof of the extent of the land granted by the plaintiffs’ ancestor to the defendant’s ancestor lie; and did they/he discharge that onus?
Now, It is the law that In claim for entitlement to a right of occupancy based on title to the land in dispute before the promulgation of the land Use Act, the onus Is on the plaintiff to prove his entitlement’ to the title. But In civil cases, the onus of proof Is not as fixed on a plaintiff as it is on the prosecution in a criminal case. In civil cases, while the general burden of proof in the sense of establishing his case lies on the plaintiff, such a burden is not as static as in criminal cases. Not only will there be instances In which on the state of the pleadings the burden of proof lies on the defendant but also, as the case progresses, It may become the duty of the defendant to call evidence in proof or rebuttal of some particular point which may arise in the case: See Felix O. Osawaru v. Simeon O. Ezeiruka (1978) 6-7 S.C. 135 at p.145. The principle is that the burden of proof lies on he who asserts and not on he who asserts the negative of an issue. The whole concept of burden of proof in a civil case has been epitomised in section 136(1) and (2) of the Evidence Act which provides as follows:
(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the Judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that that may arise on the pleadings.
(2) If such party adduces evidence which ought – reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”
In the instant case, plaintiffs’ pleading is that the area granted to the defendant is the one verged blue in the plan, Exhibit B. It is the defendant who asserts that it encompasses not only the area verged “blue” but also the area verged “yellow” in the plaintiffs’ plan which, according to him, is equivalent to the area edged red in his own plan, Exhibit E. It is the defendant who asserts this. He should prove a. Besides as the plaintiffs traced their title to the admitted original owner and the defendant did not deny this but agrees that the a second plaintiffs’ predecessor in-title granted the land in dispute to the defendant’s predecessor-in-title, I believe it is the law that the onus is on the defendant to prove the quantity of land his predecessor-in-title bought which he claims: see Madam Esther Oyunde v. Benjamin A. Ogedegbe & Ors. (1984) 1 S.C. 360, p. 363.1 agree that the defendant failed to discharge this burden and so Judgment was rightly entered against him in the court below.
I also agree that as the defendant did not deny the acts of trespass complained of but rather claimed that he did them within the area granted to him, which has turned out to be incorrect, judgment was rightly given against him for trespass and injunction.
So for the above reasons and the fuller reasons contained in the lead judgment of my learned brother, Kutigi, J.S.C., I hereby dismiss the appeal with N1,000.00 costs against the appellant.\
WALI, J.S.C. I have had the advantage of reading in advance the judgment delivered by my learned brother, Kutigi, J.S.C. I entirely agree with the reasoning and the conclusion contained therein which I hereby adopt as my own. I only wish to make contributions by away of emphasis.
In the Writ of Summons filed by the plaintiff/respondent in the trial court, the following three reliefs were sought:
Declaration of right of occupancy to that piece or parcel of land situate, lying and being at Ikoyi Road, Ogbomosho, included in the area edged “Yellow” in Plan No. AK 4679 dated 20 March, 1975.
(2) “1,000.00 damages for acts of trespass committed by or with the Authority of the defendant on the said land between January, 1967 and December, 1974.
(3) Injunction restraining the defendant whether by himself, his servants, agent or any of them otherwise howsoever be restrained from committing any further acts of trespass on the area marked ‘A’ in the area edged ‘Yellow’ on the Plan which will be filed with the statement of claim.”
In the respondents’ brief 4 issues were formulated. These four issues in my view have been covered by the three issues formulated by the appellant as respondents’ issue No. 4 is covered by issue No. 1 of the brief.
Issue 1 deals with the identity of the land in dispute and the granting by the Court of Appeal, a declaration of statutory right of occupancy and award of damages to the respondents. Both the pleadings, the evidence placed before the trial court and the findings of the learned trial judge do not leave any one in doubt as regards the identity of the land in dispute. See paragraphs 3,4 and 5 of the statement of claim in which the following averments were made by the respondents
Equally on his part the appellant, in paragraphs 3,5 and 7 averred as follows in his amended statement of defence:
“3. The defendant in answer to paragraph 3 of the plaintiffs’ statement of claim says that the land in dispute in this suit is all that parcel of land situate and lying along both sides of Ikoyi Road, in Ogbomosho having an area of approximately 97.22 acres which parcel of land is shown and verged “RED” in Counter-Survey Plan No. GS/122/A/76 dated the 12th May, 1979 filed with the statement of defence and which parcel of land has the following boundaries:
(i) Are-Ago (Arin-Ago) Family Land; (i) Akede Family Land;
(ii)Taraa Family Land otherwise known as Aborisa-Oke-Elerin Family Land
(iv)Odo-Ora stream with Jagun-Abidodan Family Land on its other
(v) Abidede Family Land.
(a) the building plots verged “GREEN” in the Counter Survey-Plan No. GS. 122/A/76 dated the 12th May, 1976, filed with this statement of defence which they purportedly allocated to several people without the defendant’s knowledge or consent and
(b) the area verged “ORANGE” in the Counter-Survey-plan No.GS. 122/A/76 dated the 12th May, 1979 filed with this statement of defence which the plaintiffs also attempted to allocate or sell to other people.”
On this issue, d.w. 5 a licensed surveyor, testified thus: –
“I know the defendant in this case. In 1976, he asked me to survey a piece of land in dispute and I prepared a plan. This is the plan already tendered as Exhibit ‘El’. The suit was HOY/64/74 later transferred to Osogbo from Oyo.
The buildings and other features shown were existing at the time of my preparation of the plan. It is GS.122/76. The area in dispute is the one edged ‘.Red”.
In 1979, I was asked by the defendant to prepare a plan in respect of the same land. This is the plan No. GS.122/A/76. Plan 1d. 1d is now admitted in evidence and marked Exhibit ’N’. The only difference is the plan number and the suit No.
The buildings on the land had been existing for some time but I cannot tell the age. I see Exhibit “AI” and P8. The area edged red in Exhibit El his the same area as edged Yellow and Blue in Exhibit A1.
The area verged Red in Exhibit N is the same area edged Yellow and Blue in Exhibit B. In Exhibit ‘N’ I show a building belonging to James Omosape. So also I show the building of J. A. Olaniyan and Moses Aara all on the left hand side of the road. All the buildings were in existence at the time I was preparing my plan. The plaintiff claimed the land and the plan shows that the defendant had no single building on the land.”
P W. 3 also identified the land in dispute in his evidence when he said:
“I know the land in dispute. I see this plan, 1 d. 1. It was I who prepared it, Chief Nathaniel Adibi & Others are the plaintiffs’ and Alhaji Busari Isola is the defendant. It is plan AK 4679A in respect of HOS/46/78.
Plan admitted without objection and marked Exhibit ’B’.
I see Exhibit ‘A’ it was a plan of a disputed land which I prepared and tendered before the High Court, Oshogbo the same parties are involved as in this case. The plan number is AK 4679.
I can compare both plans Exhibits ‘A & B’. The area verged yellow on Exhibit ‘A’ is the same as the area verged yellow in Exhibit ‘B’ There is this difference however because I showed details in Exhibit B which were not shown on Exhibit ‘A’ for example there were some houses verged “green” and some “brown” in Exhibit ’B’. In A the verged yellow is 76.81 acres. In Exhibit ‘B’, the area verged yellow and in dispute is 76.84 less the area verged brown which is in the two exhibits. I have shown a plan L and LA/446 to show the relation of that plan of the late Laniyonu and my own work Exhibits ’A & B’.”
In his findings on these pieces of evidence, the learned trial judge said:
“1 have carefully examined the plans and the counter-plans tendered before me together with the testimony of the surveyors who prepared them and I am satisfied that the disputed land verged yellow in exhibit ‘B’ is 76.84 acres or 31.095 hectares. It is my finding of fact also that within this area, there are parcels or portions of land verged brown which were granted by the plaintiffs to a number of persons who are not parties to this suit. In-between, and within the disputed land, were also portions of land granted by the defendant to a number of persons who are not parties to this suit. These are verged green in exhibit ‘B’. I have also found that the whole area in dispute and its environs are built up with several houses spring up.”
After making this finding, the learned trial judge misdirected himself and wrongly concluded that the respondents as plaintiffs have not proved their case and dismissed it.
The respondents aggrieved by the trial court’s decision, appealed to the Court of Appeal which court, after considering the case as a whole found that the learned trial judge did not properly and adequately evaluate the evidence adduced by the parties and accepted by him. The Court of Appeal, rightly too in my view, proceeded to evaluate the evidence and then concluded :
“The respondent raised in his brief the question of the identity of the land in dispute. I see no substance in respondent’s contention on this point. The evidence of his surveyor, d.w. 5 (Williams Gascoyne) has put beyond question that there was no dispute on the identity of the land in dispute between the parties.
Another issue – and a very important one at that – raised by the respondent is as to whether on the evidence the plaintiffs/appellants could be granted the declaration sought by them. As the 1st plaintiff admitted in evidence and as shown by the evidence of p.w. 4 and p.w.6 the areas edged blue and brown within the area edged yellow on Exhibit – D had been granted by plaintiffs’ families to the defendant’s ancestor, the Local Government Council and the Abidede family. The plaintiffs could therefore not claim declaration of right of occupancy to those areas already granted by them to other people – See Sanyaolu v. Coker & Anor (1983)3 S.C. 124,163 – 164; Isaac Ayoola v. Jinadu Adebayo & Ors. (1969)1 All N.L.R. 159, 163. The area edged blue is outside the area edged yellow but the area edged brown are within that area. As the areas edged brown have been excised from the area edged yellow in respect of which they sought a declaration, I am of the view that their claim has not offended against the two Supreme Court cases cited in this paragraph. I am, therefore, of the view that they are entitled to the declaration sought.”.
By virtue of the provision of section 16 of the Court of Appeal Act 1976 which in part provides as follows:
‘The Court………… shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the cause in whole or in part …….
In the case in hand, not only was there sufficient evidence from the respondent and his witnesses as to the identity of the land in dispute, but the appellant as the defendant, had failed to discharge the burden on him that the land granted to his ancestors by the respondents’ (as plaintiffs) ancestors, was more than what the respondent stated in his statement of claim and supported by his evidence. The learned Justice of the Court of Appeal succinctly stated the position as follows :
‘The evidence of the defendant and his witnesses is in my view, not cogent enough to discharge the onus on him to prove the extent of the land granted to his ancestors. He has not given the features of the boundaries of the land as at the time of the grant nor the boundary marks as was the custom in those days. It must be that it was because he failed to show all these that made the trial judge conclude that the grant to his ancestor was “in the nature of ’cannon shot’, stopping where he had decided to stop.” Having failed to discharge the onus on him, the trial court ought to conclude that the grant was limited to the area edged BLUE in Exhibit B – plaintiffs’ plan as conceded by the plaintiffs.”
I entirely agree with this view and the findings by the Court of
Appeal on the evidence before them as contained in the record. Where the trial court has failed to properly evaluate the evidence before It as a result of which I reached a decision which is perverse as in this case, the Court of Appeal has a duty, by way of rehearing, to evaluate, as if it were the trial court, the evidence that has been adduced. See section 16 of the Court of Appeal Act, 1976 (supra). The Court of Appeal should not shrink from the task of such evaluation or be inhibited therefrom, just because I Is an appellate court. See Lions Building v. M. M. Shadipe (1976)12 S.C.135, Macauley v.Tukuru 1 N.C. R. 35 Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370.
It is for this and the more detailed reasons contained in the lead judgment of my learned brother, Kutigi, J.S.C., that I came to the same conclusion, that the appeal is substantially lacking in merit and must be and is hereby dismissed. I endorse all the consequential orders contained in the lead judgment.