3PLR – AMUSA ADESINA V. BURAIMOH AFOLABI
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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AMUSA ADESINA
V.
BURAIMOH AFOLABI
COURT OF APPEAL
ILORIN DIVISION
15TH MARCH 2001
3PLR/2001/55 (CA)
OTHER CITATIONS
31 WRN 159
BEFORE THEIR LORDSHIPS
MURITALA AREMU OKUNOLA
PATRICK IBE AMAIZU
SAMUEL WALTER NKANU ONNOGHEN
BETWEEN
AMUSA ADESINA
AND
BURAIMOH AFOLABI
REPRESENTATION
Chief A. Adeoye -for the appellant
R.A. Lawal Rabana Esq., AND Iwalola Akande Esq.,- for the respondent.
MAIN ISSUES
PRACTICE AND PROCEDURE – EVIDENCE – Visit to locus in quo – adoption of a wrong procedure by a trial court in conducting visit – whether will necessarily lead to a successful appeal against trial court’s judgment – relevant considerations.
LAND LAW – Title to land – contending parties claiming to derive title from the same person – need to resolve by determining the party with better title.
PATRICK IBE AMAIZU, JCA. (Delivering the leading judgment):
The facts which led to the present proceedings briefly are as follows – The respondent as the plaintiff brought an action against the appellant and three others as defendants, in an Upper Area Court, Omu – Aran, for and on behalf of Asalofa family of Offa claiming the following reliefs –
“1. A declaration that the plaintiff and his Asalofa family members of Offa are the customary title holders and owners of the land situate and lying at Amobe Offa, and therefore the only people entitled to a certificate of occupancy on the land.
- A perpetual injunction restraining the defendants, their agents, privies, or any one claiming through them from committing further acts of trespass on the plaintiff’s land.
- A perpetual injunction restraining the defendants, their agents, privies or any one claiming through them from disturbing the plaintiff’s family of their peaceful possession and use of the land”.
It is the respondent’s case that their ancestor Asolofa was a chief and the son of Oba Oluwole. The latter was a hunter. In one of his hunting expeditions he decided to settle on the land, now in dispute. Along the line, one of his ancestors gave part of the land now in dispute known as Lamodi to the then Balogun of Offa. Lamodi land therefore has boundary with the remaining part of Amobe land. It is further his case that the boundary marks between the two lands include ruined walls which are close to bamboo trees and, cowries, which are in pots buried in the ground. Since the family occupied Amobe land, they exercised various acts of ownership over the land without let or hinderance from any quarters.
About ten years, before the present action was filed, the defendants i.e., the appellant and others trespassed into the land. It is his case that many prominent personalities in Offa including the present Oloffa of Offa intervened to settle the matter. When the attempt to settle the dispute out of court failed, the present action was instituted. On the other hand, the case of the appellant and the other defendants is that the land in dispute belongs to the Ojenogun family (3rd AND 4th defendants). Their ancestor who settled on the land migrated from Ifon in the present Oyo State. They claimed that the Oloffa of Offa appealed to them to release part of the land to the respondent’s family for farming purpose only. The appellant however agreed that the land in dispute is called Amobe. They agreed also that Lamodi land belongs to the Balogun family of Offa and that it has boundary with the land in dispute. It is further their case that before this suit was instituted, prominent personalities in Offa including the Oloffa of Offa waded into the dispute and advised the respondent and his family not to trespass into the land.
The Upper Area Court, after hearing the parties and their witnesses gave judgment as follows –
“From the totality of the evidence, exhibits before this court, we are satisfied that the plaintiff has sufficient ingredients to prove his legitimate title over Amobe portion of land and there is merit in his claim against defendants 3 AND 4.
The plaintiff ultimately succeeds in his claim accordingly –
(i) The plaintiff (Buraimoh Afolabi Asalofa) on behalf of himself and Asalofa’s family Offa is hereby declared the owner of Amobe portion of land as earlier described in the judgment of this case.
(ii) The defendants (Alhaji Shittu Ayo) and 2 (Sumonu Balogun) are hereby declared the owners of Lamodi portion of land as earlier described in the judgment in this case.”
The defendants therein were dissatisfied with the above judgment of the Upper Area Court, Omu-Aran and appealed to the High Court Kwara State. The learned trial Judges after hearing the submission of the learned counsel on the matter gave their judgment as follows –
“On the whole we are of the opinion that there are no special circumstances to justify our interference with the judgment of the trial Upper Area Court. In the result since all the grounds of appeal fail, the appeal is unmeritorious. Consequently, the judgment and order as to costs by the trial Upper Area Court are hereby accordingly affirmed.”
The appellant, still not satisfied with the judgment, has appealed to this court. On the 23rd day of January, 2001, the appellant was granted leave of this court to file and argue a new point which was not canvassed in the court below. In compliance with this court’s rules, the parties through their counsel filed and exchanged briefs of argument. Before us, the parties adopted their respective briefs and relied on the submissions made therein. In his brief of argument, the appellant set out the following issues for determination viz –
“1. Whether the learned Justices of the High Court were right in not finding that the trial Upper Area Court ought to have summoned the Oloffa of Offa to come and give evidence before it, assessed the weight to be ascribed to the evidence produced in favour of each of the parties.
- Whether the learned Justices of the High Court were right when they failed to find that the trial Upper Area Court had ascribed undue weight to the evidence about broken pots and cowries and other features mentioned by the respondent.
- Whether the learned Justices of the High Court were right in not finding that the procedure followed by the trial Upper Area Court in visiting the locus in quo and in getting evidence in respect on their visits to the locus in quo was wrong in law and that evidence produced in such a manner is inadmissible and should not be relied upon.”
The respondent in his brief of argument adopted the above three issues for determination. He however argued issues 1 AND 2 together. I intend to follow the same pattern in considering the submissions of the learned counsel on the issues formulated by them.
On issues 1 AND 2, Dr. Aje, of counsel, referred to the evidence adduced by the parties and their witnesses before the Upper Area Court. He referred in particular to the evidence of –
(1) the respondent, at page 3 lines 7 – 10 of the record of proceedings. He observed that the respondent traced his family interest in the land in dispute to the Oloffa of Offa, Oba Oluwole. It was the Oba that gave the land in dispute to Asalofa, the great grand ancestor of the respondent.
(2) P.W.5 at page 8 lines 10 – 11 of the record of proceedings. The learned counsel claimed that the evidence confirmed that it was the respondent’s ancestor Oluwole that first settled on Amobe land, now in dispute. The respondent’s great grand ancestor, Asalofa later inherited the land and passed it on to them.
The learned counsel referred to the evidence of the 4th defendant (page 12 lines 25 – 29 of the record of proceedings) that Oloffa of Offa in the course of settling the dispute between the parties declared that Amobe land belongs to Ojeunogun family. The witness went on to give evidence on how Oloffa gave Amobe land to their ancestor by name Ojeunogun Lambo (Page 13 lines 20 AND 21). After referring to the above evidence, the learned counsel submitted that as both parties traced their title to the land in dispute to the Oloffa of Offa, the Oloffa should have been summoned by the court to give evidence as his evidence could tilt the imaginary scale one way or the other. He contended that the Upper Area Court was therefore in error when it failed to call for the evidence of Oloffa under order 13(1) of the Area Court (Civil Procedure) Rule, 1971. He observed that the High Court that heard the appeal from the Upper Area Court fell into the same error when it did not exercise its powers under section 61 of the Area Court Law 1968 and referred the case to another Upper Area Court either for retrial or to hear the evidence of Oloffa of Offa. He reminded the court that it is common ground, that the Oloffa of Offa AND other prominent personalities in Offa had intervened in the dispute before it was taken to the Upper Area Court.
The learned counsel referred to the evidence about locust bean trees, broken pots and cowries. He submitted that the Upper Area Court attached undue weight to that evidence. In his view, the ownership of the land in dispute should have first been determined by the court before the features on the land could be used to lend credibility to the evidence in support of the ownership. He relied on the case of – Oyibo Iriri AND Ors. vs. Eseroraye Erhurhobara AND Ors. (1991) 3 SCNJ 1 at 12. The learned counsel observed that the locust bean trees and the broken pots and cowries could not have been in existence at the time the first Oba of Offa ruled the town. He further observed that the three places where the items were found were within Lamodi land and not within Amobe land which is in dispute. It is the learned counsel’s view, that in the case the findings should not support the ownership of Amobe land.
He submitted that the court should have accepted the evidence of D.W.3 and D.W.4 that the old walls and River Amobe mark the boundaries between Amobe and Lamodi lands. The learned counsel gave his reason for the submission. According to him, the old walls could not have been erected recently and the River Amobe is a natural boundary.
The learned counsel submitted that the Upper Area Court did not make proper findings based on its visit to the locus in quo. He repeated his earlier submission that the evidence of the Oloffa of Offa would have helped the court to arrive at the right decision. He submitted that the court should not have relied on the evidence about the cowries and broken pots found during the visit to the locus in quo. He cited the case of – Oba E. A. Ipinlaye v. Chief Julius Olukotun (1996) 6 SCNJ 74 at 94. In his reply, Lawal-Rabana Esq., of counsel, submitted that it is trite law that civil cases are decided on prepondarence of evidence. And the onus of adducing evidence is on a party who would fail if such evidence was not produced. He cited the case of – Anthony Aruna Braimah v. Alhaja Nisnota Abiola Abasi AND Ors. (1998) 10 SCNJ 85 at 95 lines 15 – 25. The learned counsel then referred to the evidence of the respondent as the plaintiff in the Upper Area Court, that their ancestor Oba Oluwole first settled and possessed the land, now in dispute. The respondent and P.W.5, the learned counsel submitted, traced their root of title to Oba Oluwole their ancestor. On the other hand, the appellant and his witness gave evidence that the land in dispute belonged to their ancestor – Ojeunogun Lambo. He referred to part of the evidence of the appellant and the 1st defendant that the present Oloffa intervened in the dispute over the land and begged the appellant’s family to release part of Amobe land to the respondent for farming purpose.
The learned counsel contended that it was the appellant that asserted or led evidence that brought in focus the role played by the present Oloffa of Offa in the land in dispute. The learned counsel further submitted, that in that case the onus lied on the appellant to call the Oloffa to testify in support of his claim. It is the view of the learned counsel that the failure of the appellant to call the Oloffa to testify is fatal to his case and the Upper Area Court should not be held responsible for the failure to call the Oloffa to give evidence because the burden of provising that particular fact lied on the appellant. He cited the following cases – Nnanyelugo C. Odukwe v. Mrs. Ethel No. Ogunbiyi (1998) 6 SCNJ 102 at 116 – 118, and N. O. Motanya AND Ors. v. Elijah Elinwa AND Ors. (1994) 7 AND 8 SCNJ 615 at 621 Finally, the learned counsel contended that the failure to call the present Oloffa of Offa to give evidence in the lower court did not occasion a miscarriage of justice. This is because, according to the learned counsel, it is shown from the evidence adduced by the parties that the Oloffa of Offa is not the common grantor to the parties. He submitted that the evidence adduced was sufficient for the court to reach its decision. He urged the court to dismiss the appeal. I observe that the learned counsel for the appellant submitted that from the evidence of the parties and their witnesses, is it very clear that each party traced his root of title to the Oloffa of Offa. The learned counsel for the respondent, on the other hand, is of the opinion that the evidence adduced by the parties and their witnesses does not show that Oloffa of Offa is the common grantor to the parties of the land in dispute. It is trite that where contending parties in a land dispute are shown to derive their title, interest, or right from the same person, the issue should be resolved by finding out who as between the parties has a better title. It is my view that because of this, the issue of the parties having the same root of title has to be addressed first. The evidence of the respondent in this regard runs as follows –
“My ancestor was a hunter and he came on hunting expedition to Amobe land, Offa. He was Oba Oluwole, Oloffa. Asalofa is a chief and son of Oluwole at Offa. We (Asolofa) are descendants of Oba Oluwole Oloffa of Offa (Page 3 lines 7 – 10 of the record)”.
His witness – P.W.5 gave evidence thus –
“Our ancestor Oluwole (first) settled and possessed the land ……………………… (Page 8 lines 10 and 11)”
On the other hand the appellant and his witness – 4th defendant gave the following evidence –
“(a) Apellant –
(i) I know Amobe piece of land which belongs to my ancestor – Ojeunogen Lambo (Page 13 lines 21 and 22).
(ii) My ancestor was the founder of Offa (Page 15 line 21.)
(iii) My ancestor first settled at Offa ever before all other chiefs (Page 15 line 23)
(b) 4th defendant: I know Amobe land, it belongs to Ojeunogun family, Offa. (Page 12 line 16).
It is obvious from the above evidence that the parties did not claim title from the same root.
I observe that it is common ground that before the suit was filed in the Upper Area Court, prominent indigenes of Offa including the present Oloffa of Offa intervened with a view to settling the case out of court.
According to P.W.5
“Oloffa of Offa gave part of Amobe to the defendants. But the defendants exceeded where Oloffa gave them. (Page 9 lines 35 AND 36 to page 10 line 1)”.
The 4th defendant’s evidence in this regard ran thus –
“Oloffa declared the land of Amobe to my family (Ojeunogun). (Page 12 line 28)”.
The appellant himself testified as follows –
“The present Oloffa and Offa intervened and begged Ojeunogun family to release part of the land to Asalafa’s family for farming.”
I observe that the respondent’s case in the Upper Area Court was never predicated on the fact that the present Oloffa of Offa intervened in the dispute between him and the appellant over the land in dispute. Or on the fact that the present Oloffa of Offa persuaded him or the appellant to surrender part of the land to other side. His case was straight forward. His ancestor owned the land and his family inherited it from him. In that light the evidence of the present Oloffa of Offa would not have been relevant to the case of the respondent. That being the case, the appellant, would have called the Oloffa if his evidence is important to his case in order to establish his defence. Chief S. A. Okebule AND Ors. v. Thomas Oyagbola AND Ors. (1990) 4 NWLR Part 147 P. 723. Our courts loathe to interfere with the case being put forward by the parties. It is not for the lower court therefore to have opened new vista for the parties by calling on its own, the Oloffa of Offa to give evidence. Iliyasu Umar v. Bayero University Kano (1988) 2 NSCC 306.
The record of proceedings show that the visit to the locus in quo was as a result of a joint request by the learned counsel. It does seem to me from the detailed report of the visit which appears at pp. 19 – 25 of the record of proceedings that the procedure followed at the locus in quo was in substantial compliance with the rules of fair hearing. The parties and their witnesses were given opportunity to identify their boundaries in line with their evidence. The discovery of the broken pots, cowries and locust bean trees at the locus in quo enabled the court to get a better grasp of the evidence that had been given earlier before the visit. It is my view that the trial Upper Area Court did not therefore ascribe undue weight to the evidence about the broken pots and cowries etc, etc. Issues 1 and 2 are resolved in favour of the respondent.
On issue 3, Dr. Aje, of counsel, submitted that the procedure followed by the Upper Area Court in obtaining evidence from the parties at the locus in quo was wrong. In the learned counsel’s view, the court had two options. The court could have adjourned the court sitting to the locus in quo. In that case, the court could take evidence of the parties at the locus in quo. The other option, identified by the learned counsel, is for the court to carry out the inspection of the locus in quo and thereafter return to the court and take the evidence of the parties and their witnesses. He relied on the cases of – Emmanuel Chukwuogo v. Richard Obiora (1987) 7 SCNJ 78 at 94; James Ogundele v. Dare Julius Fasu (1999) 9 SCNJ p. 120. The learned counsel submitted that the court did not follow any of the above procedure. He further submitted that the procedure followed by the Upper Area Court in conducting the inspection and obtaining evidence is unlawful. And, in his view, the evidence obtained by the court is inadmissible. He observed that the court relied heavily on the inadmissible evidence so obtained to reach its decision.
The learned counsel observed also that the court visited the locus in quo about five times thereby giving the respondent the opportunity to supply evidence which was not obtained earlier on at the locus in quo. He submitted that it led to a miscarriage of justice. He referred to the case of Joseph Agbahomovd AND Ors. v. Apata Eduyegbe (1999) 2 SCNJ 94. He urged the court to allow the appeal. In his reply, Lawal-Rabana Esq., of counsel, referred to the rule governing visit to a locus in quo as provided for in section 77(d) of the Evidence Act, 1990. He submitted that if the visit to the locus in quo conducted by the Upper Area Court in this case is examined against the background of the provision, it can easily be seen that the visit was properly conducted. The learned counsel referred to the record of inspection at pages 19 – 25 of the record of proceedings and observed that –
(i) The inspection was conducted in the presence of the counsel, the parties and the witnesses.
(ii) The parties gave evidence at the locus in quo and were cross examined, and
(iii) There is no restriction in our law as to the number of times a court may visit the locus in quo.
He urged the court to dismiss the appeal.
I am aware that the learned counsel for the appellant in his brief of argument, criticised the procedure adopted by the Upper Area Court in conducting the visit to the locus in quo. It does seem to me that in order to find out if the criticism is justified or not one has to look at the whole proceedings before that court. The record shows that during the first visit of the court to the locus in quo the respondent did not have the implements to unearth the old pots and cowries claimed to be buried near the locust bean trees. The court had to adjourn the visit to enable the respondent arrange for people to dig the ground. I observe that the appellant did not raise any objection to the adjournment. I observe further that on the adjourned date, the appellant did not also raise any objection to the matters dealt with by the court on that day. It is very clear from the detailed report of the visits at pages 19 – 25 of the record, that counsel and the parties had the opportunity to ask questions and make remarks.
In that case, even if the procedure adopted by the Upper Area Court in conducting the visits to the locus in quo can be faulted, it is not the law that because of the fault in the procedure the appeal must be allowed. The appeal will be allowed only if the appellant shows that such an error is substantial, in the sense that if the lower court had directed itself correctly it would have reached a different decision. Hyacenth Anyanwu v. Robert Mbara (1992) 5 NWLR (Pt. 242) p. 386. It is my view that the onus is not only on the appellant to identify the wrong procedure followed by the Upper Area Court in conducting the visits to the locus in quo but to show how the wrong procedure gave undue advantage to the respondent. The appellant has not established that in this appeal. It is trite that the provisions of section 77(d)(ii) of the Evidence Act, 1990, regulate visits to the locus in quo by courts. A careful study of the report of the visits shows that the visits were conducted in substantial compliance with the said provisions. In that case, the issue is resolved in favour of the respondent. The appellant has failed in all the three issues formulated in his brief of argument. Consequently, the appeal fails and is hereby dismissed.
The respondent is entitled to costs which I assess at N5,000.00.
MURITALA AREMU OKUNOLA, JCA.: I have read in draft the leading judgment just delivered by my learned brother Amaizu JCA. My learned brother had adequately covered all the issues raised and canvassed by the parties in this appeal.
I agree with the reasoning and conclusion of my learned brother in the leading judgment that the appeal is unmeritorious and same should be dismissed. I also dismiss the appeal.
I abide by the consequential orders in the leading judgment including the order as to costs.
WALTER SAMUEL NKANU ONNOGHEN, JCA:I have had the advantage of reading in draft the lead judgment of my learned brother Amaizu JCA just delivered. I agree with the reasoning and conclusion that there are no merits in this appeal. I however wish to comment on issue No. 3
As regards the said issue, it is on record that learned counsel took part in the proceedings at the locus in quo and did not at any stage complain – there is no evidence of such on record. That apart, the appellant has not shown how he has been adversely affected by the proceedings at the locus in quo. It is not enough that mistakes were committed but how have they affected the party complaining. In other words the relevant question is whether the mistake(s) committed by the lower court has/have occasioned a miscarriage of justice since it is not every error committed by the lower court that will result in the judgment of that court being set aside. For these and other reasons stated in the said lead judgment of my learned brother Amaizu JCA, I also dismiss this appeal as lacking in merit. The judgment of the Kwara State High Court in its appellant jurisdiction in suit No. KWS/OM/5A/96 delivered on 7th day of November 1996 is hereby affirmed. I abide by the consequential orders made in the said lead judgment including the order as to costs.
Appeal dismissed.
Cases cited in the judgment
Okebule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723.
Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386.
Agbaho v. Eduyegbe (1999) 2 SCNJ 94.
Braimah v. Abasi (1998) 10 SCNJ 85.
Chukwuogo v. Obiora (1987) 7 SCNJ 78.
Odukwe v. Ogunbiyi (1988) 6 SCNJ 102.
Iriri v.Erhurhobara (1991) 3 SCNJ 1.
Ipinlaye v. Olukotun (1996) 6 SCNJ 14.
Motanya v. Elinwa (1994) 7 AND 8 SCNJ 615.
Ogundele v. Fasu (1999) 9 SCNJ p. 120.
Umar v. Bayero University Kano (1983) 2 NSCC 306.
Statute referred to in the judgment
Evidence Act, Section 77(d)(ii)
