3PLR – KARIMU FASONU V. S.I. FAWEHINMI MOSEKUNLA FAWEHINMI AND OTHERS

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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KARIMU FASONU

V.

S.I. FAWEHINMI MOSEKUNLA FAWEHINMI AND OTHERS
COURT OF APPEAL

(BENIN DIVISION)

FRIDAY, 14^TH JUNE, 1996

CA/B/198/93

3PLR/1996/68  (CA)

 

OTHER CITATIONS

3 NWLR PART 492 PG.182

 

BEFORE THEIR LORDSHIPS:

LISA FAWEHINMI

SUNDAY AKINTOLA AKINTAN;

SYLVANUS ADIEWERE NSOFOR;

ATINUKE OMOBONIKE IGE

REPRESENTATION

M.A. Akintoroye, – for the Appellant

Dele Awokoya – for the Respondents

MAIN ISSUES

EVIDENCE: Evidence admissible under certain conditions

LAND LAW: Customary tenancy :Denial of title of overlord by tenant

REGISTRATION OF INSTRUMENTS: Documents registrable thereunder

MAIN JUDGEMENT

ATINUKE OMOBONIKE IGE Delivering lead judgement:

This is an appeal against the judgment of Ajakaye J. of Ondo High Court in Suit No. HOD/23/86. In the Court below the respondents as plaintiffs sued the appellant as defendant to Court claiming the following reliefs by their writ of summons and statement of claim.

1. Declaration that the plaintiffs and members of their family are the persons entitled to the grant of Customary Right of Occupancy or Title under Native Law and Custom of the farmland situate and lying at Ago Ota Village near Aboda village on Ondo – Aratudin Road, Ondo Town in Ondo State. The aforesaid farmland is bounded on the East by late High Chief Adaja Akintewe village and farmland, on the South and South East by Aboda farmland and village, on the North by farmland of late High Chief Lisa Odundun (Bademosi) and on the North East by High Chief Lisa Fawehinmi Alujannu the 1st farmland, on the West by Chief Lisa Odundun (Bademosi Farmland.
2. Forefeiture of his interest (if any) at Ago Ota
3. Perpetual Injunction restraining the defendant, his servants, agents and people claiming through him from going onto the land as describe above.

Pleadings were ordered and filed by the parties. The respondents filed a Survey Plan of the land in dispute and called 7 witnesses in support of their claim. They also tendered 3 Exhibits. The appellant on his own side called 5 witnesses. After taking written addresses from counsel on both sides the learned trial Judge delivered judgment in favour of the plaintiffs, on 6th December 1991.

The defendant/appellant is dissatisfied with this judgment and has appealed against it.

The appellant filed 7 grounds of appeal and formulated 4 Issues for determination. The following are the grounds of appeal without their particulars;

Ground 1. The judgment is against the weight of evidence.

2. The learned trial Judge misdirected himself in law when he admitted as “Exhibit A” without more, a document prepared in Yoruba Language, and by allowing the same document to influence wrongly his mind and decision in this case.
3. The learned trial Judge misdirected himself in law when he admitted as “Exhibit C” an agreement that was not pleaded at all and by allowing the said “Exhibit C” which was brought to court by a stranger to the agreement to influence his mind when he held at page 126, line 6 to 10 of the Records thus:-

“To further buttress their claims, plaintiffs called Akinolu Ogunyosoye, son of Ogunyosoye, the Oloja of Ifore to tender a document. Exhibit “C” to show that his aged father was appointed a village head by the plaintiffs’ family over Igbojere and Oreboro farmlands”.

4. The learned trial Judge erred in law in by giving judgment to the plaintiffs when he held at page 130 lines 31-33 thus:-

“In summary, the plaintiffs succeed in all the three legs of their claim. Judgment is hereby given in favour of the plaintiffs against the defendant in the following terms”

WHEREAS the plaintiffs did not give credible or convincing evidence linking the ownership of the land in dispute with the features on the land.

5. The trial Judge erred in law when he held at page 129, line 15 thus:-

“The evidence of 1st plaintiff which is supported by the evidence of Titus Oladepo, which I believe is in my view sufficient proof without the document (“Exhibit A”) which the defendant denied …… as agent until when two of the principal members of the family died and the plaintiff seized the opportunity not to play ball any longer”.

WHEREAS, none of the witnesses gave evidence that he paid tribute to the plaintiffs family through the defendant in his capacity either as an agent or representative or customary Agent of the plaintiffs’ family.

AND WHEREAS the evidence of PW3 “Titus Oladepo) and PW4 (Eweta Atume) as regards payment of tributes, the time they became plaintiffs tenants and the mode of payment of tribute annually to the plaintiffs’ family contradicted the evidence of 1st plaintiff.

6. The learned trial Judge misdirected himself in law by granting an Order of forfeiture against the defendant and in favour of the plaintiffs.
7. The learned trial Judge erred in law when he did not evaluate adequately (or at all) the relevant evidence brought him by parties and their witnesses in this suit in order to be able to give reasons for his decision in this case. This failure has occasioned a miscarriage of justice.

These are the Issues formulated for determination by the appellant.

1. Whether the two documents that were tendered in evidence and marked “Exhibits A and C” respectively were intended to appoint and in fact appointed the appellant as a Customary Tenant of the Respondents’ family whose interest could be forfeited.
2. Whether the said “Exhibit A and C”; and some facts not pleaded by the respondents were rightly and properly admitted in evidence by the trial Court.
3. Whether from the pleadings and the evidence given in court by the respondents there were sufficient facts that could be relied upon by the trial court to grant the reliefs sought by the respondents.
4. Whether the learned trial Judge adequately and carefully evaluated the evidence given in this case as required in law before he arrived at his decision.

In their own brief of argument the respondents have formulated the following Issues for determination.

1. Whether the appellant was a Customary Tenant of, and in fact was appointed caretaker of Ago Ota Farm lands by the respondents Family having regard to Exhibits “A” “C”.
2. Whether Exhibits “A” “C” were inadmissible and their admission in evidence had occasioned a miscarriage of justice
3. Whether the respondents had adduced sufficient evidence of traditional history of the vast parcel of land in dispute and were entitled to the declaration of title in their favour.

I propose to consider the Issues formulated by the appellant in dealing with this appeal.

Issues 1 and 2 talk about Exhibits A and C tendered by the plaintiff/respondent in the case and admitted in evidence by the learned trial Judge. The appellant’s main complaint about Exhibit A is that it was wrongly admitted by the learned trial Judge because it was not written in English which is the language of the Court. Exhibit A was written in Yoruba Language and the appellant an illiterate is a signatory to it. Exhibit C which was tendered through plaintiffs 6th witness is also a bone of contention in this appeal. On behalf of the appellant, the argument is that both documents Exhibits A and C were intended to confirm some individuals as head of some villages and not to appoint them (particularly the appellant) as customary tenants or head tenants. The counsel for the appellant further argued that the plaintiffs/respondents never mentioned the appellant as one of their customary tenants in their pleadings or Statements of Claim. He submitted that paragraphs 23 and 29 of the Statement of Claim showed that appellant was only appointed to control the customary tenants and collect tributes from them. According to him even the evidence of PW1 described the appellant as a head villager of Ago Ota whose duties were to collect tribute from customary tenants and oversee their activities. Counsel for the appellant further submitted that the learned trial Judge misdirected himself in law when he unilaterally raised as one of the issues for his determination whether the appellant was a customary Tenant/Agent of the respondents’ family rather than limiting himself to the evidence before him. He went on to cite the case of – Sajere v. Iretor (1991) 3 NWLR (Pt. 179) 340. In support of the proposition that the purpose for which a document is sought to be admitted – will not preclude the Court from examining the nature of the document and determine the real purpose it was intended to serve. Appellant’s main complaint about Exhibit C is that it was not pleaded by the respondents hence it was wrongly admitted by the learned trial Judge.

Counsel for the appellant finally submitted that the appellant being an illiterate, the two documents offended against the provisions of Section 3 of Illiterate Protection Laws of Ondo State 1978. He added that both Exhibit A and C ought to be expunged from the record. By so doing he submitted that the respondent’s case remains unproved.

In answer to all the contention of the appellant the counsel for respondents in his brief of argument submitted that the appellant did not deny executing Exhibit A nor did he challenge his signature on both Exhibits A and C. What the appellant pleaded was that the documents were a ruse and fraud and not reflecting the correct position of the parties. Before the lower court appellant never led evidence to prove any ruse or fraud. Counsel submitted that the relationship between the appellant and the respondents family was properly determined by the learned trial Judge in his judgment. He submitted that the appellant’s interpretation of the purpose of Exhibits A and C was wrong and should be rejected. He said the appellant did not complain that he was an illiterate at the time both Exhibits were tendered hence he should not be heard to be complaining about their admissibility at this stage.

On the issue of the documents offending against Section 3 of the Illiterate Protection Laws of Ondo State 1978, counsel gave the following explanations.

1. The question of compliance with the Illiterate Protection Laws was not raised at the lower court consequently the appellant cannot be heard to raise the objection at this stage.
2. The Illiterate Protection Laws of Ondo State 1978 relied upon by the appellant were not in existence when the alleged offending documents were executed.
3. Assuming without conceding that the documents were admitted in error, after a perusal of the inviolable findings of fact by the Trial Court, there was no miscarriage of justice.

Counsel finally submitted that even if the trial Judge had excluded the documents during the evaluation of the evidence before him he would still have come to the same irresistible conclusion that the plaintiffs were entitled to a declaratory title in their favour.

Now what are the documents referred to as Exhibits A and C in this case. In the first case Exhibits A and C are one and the same document except that one was tendered by 1st plaintiff while the other was tendered by PW6.

After a careful perusal of Exhibits A and C one could see that they are Declaratory Statements pointing to the extent of pieces of land owned by one Famoyehun father of Chief Lisa E.A. Fawehinmi and also father to Chief Lisa Alijanmu Fawehinmi.

The documents described Karimu Fasonu as head villager for Ota Camp and Ogunyosoye as head for Igbojero and Oroboro. Both heads were given authority to allow anyone to farm, on the various pieces of land. If anyone farming on the land failed to inform the village head, his farm land would be withdrawn from him.

The document Exhibits A and C are written both in English and Yoruba and the defendant signed the Yoruba portions. He did not thumb-impress the documents.

The documents speak for themselves and they need no further interpretation than the one placed on them by the learned trial Judge.

Exhibits A is not a conveyance or a document passing title of land to anyone. The learned trial Judge rightly held that Exhibit A is not a registratrable documents as envisaged by Section 16 of the Lands Instruments Registration Law Cap 54 Laws of Ondo State. The same goes for Exhibit C which was not even objected to by the appellant when it was tendered by PW6.

The case of Sajere v. Iretor 1991 3 NWLR (Pt. 179) 340 cited by the appellant’s counsel is not relevant or applicable to this case. In Sajere’s case (supra) two unregistered Conveyance were to be tendered in evidence in a case claiming Special and General damages for breach of contract to sell a disputed piece of land when the learned trial Judge rejected them as inadmissible in that they offended against Section 16 of the Land Instruments Registration Law. The Court of Appeal upheld the learned trial Judge’s decision to reject the said Exhibits P1 and P2. Coupled with non registration of the Deeds of Conveyance the learned trial Judge held that the two documents were draped in forgery.

This is not the case with Exhibits A and C in the instant case. The documents were not tendered to pass title to defendant/appellant or any village head. They were mere declaratory statements showing the appellant as customary agent/caretaker/overseer of the respondents’ family land at Ago Ota.

It is my view and I so hold that the documents Exhibits A and C were rightly admitted in evidence by the learned trial Judge.

They do not call for registration at all before they can be admitted in evidence. As to the point raised by appellant’s counsel that Exhibit C was not pleaded by the respondents, I think I buy the submission of the counsel for the respondents that the appellant not having objected to its admissibility when the document was offered in evidence, he can now not be heard to complain about its admission.

See the case of Etim v. Ekpe (1983) 3 SC. 12 (1983) 1 SCNLR 120 AT 36-37. Moreover it is my view that Exhibit C (which is the same as Exhibit A) constitute evidence by which material facts pleaded in respondents’ statement of claim are to be proved. This view is informed by the view expressed by the Supreme Court in the case of Thanni v. Saibu (1977) 2 SC. 89 at 114-115 Exhibit C cannot be regarded as totally inadmissible and since the appellant has failed to raise an objection to the reception in evidence, the document will be admitted in evidence and the appellant cannot afterward (as he has tried to do here on appeal) be heard to complain about its admission. See the case of Etim v. Ekpe (supra) which was followed by Akpata, J.C.A. as he then was in the case of Sadhwani v. Sadhwani Nig. Ltd. – (1989) 2 NWLR (Pt. 101) 72 at pages 83-84. On the question of the weight to be attached to Exhibits A and C, the learned trial Judge in his judgment did not base his judgment merely on consideration of Exhibit A. He did not mince words as to the lightness of the weight he attached to Exhibit A.

I shall quote the relevant portion of his judgment where he referred to Exhibit A;

“The plaintiffs in establishing their case tendered Exhibit A to show that the defendant is a customary tenant and agent for the plaintiffs’ family. Without considering Exhibit ‘A’, I believe that the defendant is an agent of the plaintiffs’ family, having been appointed a village head by the plaintiffs’ family. The evidence 1st plaintiff, which is supported by the evidence of Titus Oladepe, which I believe is in my view sufficient proof without the document (Exhibit ‘A’) which the defendant denied. I hold that the plaintiff spoke the truth that the defendant was, over the years, co-operating with the plaintiffs’ family as agent until when two of the principal members of the family died and the plaintiff seized the opportunity not to play ball any longer.

I hold that the plaintiffs have by preponderance of evidence, established a better title to the land in dispute and they are entitled to the declaration sought”.

This in my view shows that the learned trial Judge did not rely strongly or mainly on Exhibit A or its contents to declare the respondents as owners of the land in dispute situate at Ago Ota. The learned trial Judge relied on the credible and proven evidence of the 1st plaintiff and many of his witnesses, such as PW2, PW3 and PW5 especially the uncontroverted evidence of 1st plaintiff that his ancestors first settled on the land in dispute in the 18th Century.

Assuming that Exhibits A and C were wrongly admitted by the learned trial Judge which proposition I firmly disbelieve, have they occasioned any miscarriage of justice in this case? My answer is an emphatic No in view of the overwhelming credible evidence given in support of the plaintiffs’ claim. In view of the above findings Issues 1 and 2 are hereby resolved in favour of the respondents.

I now come to Issues 3 and 4 which I propose to treat together as they deal with whether or not the respondents gave sufficient evidence that could be relied on by the learned trial Judge to grant the relief’s sought by the respondents; and also whether the learned trial Judge carefully evaluated the evidence given in this case as required by the law.

In a land matter or in a claim for declaration of title a plaintiff can prove his title in 5 different ways as enunciated in the famous case of Idundun & Ors. v. Daniel Okumagba & Ors (1976) 9-10 SC. p. 227 at 246-250. These are the five ways

1. By traditional evidence
2. By production of document of title
3. By proving acts of possession and ownership extending over a sufficient length of time and are numerous and positive enough to warrant the inference that the plaintiff is exclusive owner.
4. By proving acts of long possession and enjoyment of land.
5. By proof of possession of connected or adjacent land in circumstances which is positive that the owner of such adjacent land is probably the owner of the land in dispute.

In the present case both parties adduced traditional evidence and the learned trial Judge who had the opportunity to see and listen to the witness on both sides in Court preferred the evidence given by the respondents with regards to the history of their ancestors on the land.

Looking at the way the learned trial Judge considered the evidence of the witnesses it is my view that he was quite objective in his appraisal of their evidence.

In dealing with the evidence of the boundarymen of the two parties, he gave reasons why he preferred the evidence of PW5 and PW7 to that DW5. See the relevant portion of the judgment at p. 127 of the records. I quote

“The evidence of the boundarymen called by the plaintiff impressed me more than the evidence of the boundarymen called by the defendant. In particular, I believe the evidence of Josiah Adebayo Bademosi (PW5) and the evidence of PW7, Gabriel Akinbolusire. I do not believe the evidence of Olaleye Akintewe – DW5 who claimed to be the head of Akintewe family. DW5, under cross-examination admitted he did not know the name of the defendant’s family. When asked to describe his family land he could not describe the boundaries properly by giving all the boundaries. He appeared very hesitant in answering questions. DW5 denied that Akinbolusire is a member of his (Akintewe) family. He admitted, however, that Akinbolusire has a farm on Akintewe family land. I prefer the evidence of Akinbolusire that he is a member of Akintewe family, that he has a farm at Akintewe family land, and that he has been farming there since his youth and that Akinteye family has boundary with the plaintiffs’ family on the land in dispute”.

The learned trial Judge was very objective in his findings of fact especially as to possession. Read what he said,

“As to possession of the land in dispute, I find as a fact that both the plaintiffs and the defendant have farms on the land in dispute. I also find as a fact that Atume, the Urhobo tenant who harvests palm fruits on the land in dispute and neighbouring farmlands got to the land through the plaintiffs family. I accept, as the truth, Atume’s evidence. His evidence stood unshaken under the searchlight of cross-examination. Titus Oladepo (PW3), a tenant, impressed me as a truthful witness. He stated that he and others were put in possession of the land in dispute by the defendant and they were later taken to the plaintiffs’ family described as the real owners by the defendant. I hold that he (PW30 spoke the truth that he had not paid any tribute to the plaintiffs and that when his cocoa was ripe for harvesting and payment of rents due, there was problem between the plaintiffs and the defendant, he thus did not pay. Samuel Olaleye, a tenant who gave evidence as DW4 stated that he was granted land by the defendant. He admitted knowing Atume, the Urhobo tenant. He also admitted that he (Atume) got to the land in dispute before him. I hold the view that the plaintiffs, by more credible evidence have established their possession of the land in dispute”.

From the above findings of the learned trial Judge it is easy to see that the traditional evidence of the respondents was upheld and found conclusive. It is only where the evidence of tradition is inconclusive that the case has to be considered on the question of other facts pleaded and relied on at the trial. See the cases of Onyido v. Ajemba (1991) 4 NWLR (Pt. 184) 203 Ekpo v. Ita (1932) 11 NLR 68 Balogun v. Akanji (1988) 1NWLR (Pt. 70) 301 Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 and Runsewe v. Odutola (1996) 4 NWLR (Pt. 441) 143.

In this case the learned Judge rightly accepted traditional evidence proffered by the respondents’ and came to the conclusion that the preponderance of credible evidence is more on the side of the scale of the appellant. Moreover the Plan Exhibit B tendered by the plaintiffs showed that their family has other land adjacent to the land in dispute and on the North East marked as High Chief Lisa Fawehinmi Alujannu Farmland. All these have strengthen the case of the respondents as against the appellant’s case. Normally a Court of Appeal will not interfere with the findings of facts made by the learned trial Judge unless the findings are perverse, unsupportable and have occasioned a miscarriage of justice. The trial Court has the opportunity to assess each witness both in his evidence in chief and under cross-examination and is also able to watch his demeanour and assess the credibility and reliability of his testimony. See the cases of Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952 Akpagbue v. Ogwu (1976) 6 SC. 63; Odofin v. Ayoola (1984) 11 SC. 72 Ibanga v. Usanga (1982) 5 SC. 103.

In this case the learned trial Judge has made such cogent findings of fact based on credible evidence before him that it will be difficult to fault him.

It will not be an exaggeration to say that his findings are unassailable. On the issue of forfeiture, it is trite law that customary tenants are entitled to continue in peaceable possession and their rights will not be forfeited on minor acts of misbehaviour. See the case of Lasisi v. Tubi (1974) 12 SC. p. 71.

But where a customary tenant or customary agent/caretaker denied the title of his overlord as in this case where the defendant/appellant not only denied the title of the respondents’ family but has used the police to harass the respondents’ and their tenant on the land in dispute such customary agent/caretaker has himself to blame and is liable to forfeit his interest or any right he might have had over the said land.

The appellant’s behaviour has gone beyond minor acts of misbehaviour. This is a good case to grant the respondents forfeiture as claimed. Also see the cases of Akinloye & Anor v. Bello Eyiyola & Ors. (1968) NMLR 92 and Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 144.

The learned Counsel for the appellant in his brief of argument has tried to submit that the grant to the appellant be deemed as an absolute grant in view of the fact that no condition such as payment of tribute was attached to the grant when it was made. I am afraid I do not buy this submission. It is a nonstarter in the context of this case where the evidence before the Court does not support such grant to the appellant customary/agent and caretaker. If the appellant had acknowledged the over-lordship of the respondents’ family, that argument would have been pleaded. It is my view that the learned trial Judge was correct in granting the respondents forfeiture of any interest the appellant might be claiming.

The respondents having been declared the persons entitled to the grant of customary right of occupancy over the land at Ago Ota delineated RED on the Survey Plan No. JOS/OD/1425 dated 23/5/86 signed by one Olasehinde Esan, Licensed Surveyor Exhibit 8, they are entitled to a claim for perpetual injunction. The learned trial Judge was right in restraining the defendant/appellant and other claimants through him from going on the said land in dispute at Ago Ota.

On a final analysis this appeal lacks merit and I dismiss it in toto. The judgment of the learned trial Judge delievered on 6th day of December 1991 in Suit No. HOD/23/86 is hereby upheld.

Appellant is to pay costs of N2,000.00 to the respondent.