3PLR – OGUNRO V. YEKU

Published by Law Nigeria Admin at July 12, 2019

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OGUNRO

V. YEKU

SUPREME COURT OF NIGERIA

SC. 218/2004

FRIDAY, 24 FEBRUARY 2017

3PLR/2017/250 (SC)

BEFORE THEIR LORDSHIPS:

MARY UKAEGO PETER-ODILI JSC (Presided)

KUMAI BAYANG AKA’AHS JSC

K. MOTONMORI OLATOKUNBO KEKERE-EKUN JSC

CHIMA CENTUS NWEZE JSC (Read the Lead Judgment)

EJEMBI EKO JSC

BETWEEN

ASANI SOGUNRO
JACOB AKINWUNMI
A. A. SULEMON ADEJONLU
ADISA ADE
KOLA OSO
SUNMONU SEIDU

(Attorneys to Adejonlu Abinu Family of Ibasa, Igaun, Ogun

State)

AND

AREMU YEKU
JIDE KOTOYE
AYINDE SHOWUNMI

(For themselves and on behalf of Somolu Okunseinde Family)

REPRESENTATION

R.O. Sadik – for the Appellants.

Dele Oloke – for the Respondents.

MAIN JUDGMENT

NWEZE JSC (Delivering the Lead Judgment): At the High Court of Ogun State, Otta Judicial Division, the appellants in this appeal (as plaintiffs) caused a writ of summons to be issued against the respondents herein (defendants). Pleadings were settled and exchanged; amended and exchanged.

The case of the appellants, as could be gleaned from paragraph 33 of the further amended statement of claim, was expressed thus “The defendants being tenants of the plaintiffs have by their actions denied the plaintiffs’ title and have claimed ownership absolutely or through other source.” The reliefs sought were couched thus:

34 (a) A declaration of forfeiture of the defendants’ tenure under native law and custom;

(b) Possession of the said land.

Seven witnesses testified in favour of the plaintiffs. On their part, the defendants’ case was put forward by their five witnesses. In his address, at the end of the oral testimonies, learned counsel for the defendants contended that the plaintiffs failed to establish that they (the defendants) were their customary tenants at Ibasa. He explained that the ancestors of …

They were, accordingly, struck out. In effect, only the sub-joined first issue is outstanding in the appellants’ favour:

Whether the lower court have (sic) sufficiently considered the findings of the trial court as to the establishment by the respondents of long settlement on the disputed land their root of title by way of long settlement or sufficient traditional evidence?

On his part, learned counsel for the respondents formulated two issues. As a logical corollary to the approach of the learned counsel for the appellants, he (the respondents’ counsel) also, abandoned the second issue in the brief filed on March 30 2015, although deemed properly filed on November 29, 2016. Thus, only the first issue in the said brief is outstanding in favour of the respondents. It was framed thus:

Whether having regard to the pleadings and totality of evidence adduced, the court below was right in dismissing the appellants’ appeal?

My lords, in my humble view, the phraseology of the

outstanding issue one in the respondents’ brief is more felicitous than the woolly tenor of the appellants’ outstanding issue. Above all, it is even more succinct and more precise apropos the appellants’ main grouse against the judgment of the lower court.

It will, accordingly, be adopted in the determination of this appeal.

Thus, the issue for determination is:

Whether having regard to the pleadings and totality of evidence adduced, the court below was right in dismissing the appellants’ appeal?

Before dealing with this issue, it would be necessary to dispose of the preliminary objection of the respondents. The gist of the said objection, argued on pages 3 – 5 of the respondents’ brief was that the appellants’, in their ground four of the notice and grounds of appeal, raised the issue of acquisition for the first time without obtaining the leave of court.

It was pointed out that, at the lower court, the respondents canvassed the same objection: an objection which the said lower court upheld. Learned counsel submitted that the only option left for the appellants was to challenge the lower court’s order striking out the said ground by complaining against it. He cited several cases on the point that the ground formulated on the said question of acquisition before this court neither arose nor emanated from the lower court’s decision, paragraph 5.3, page 4 of the respondents’ brief.

The appellants attempted to debunk these arguments in their reply brief deemed properly filed on November 29, 2016.

Like the respondents/objectors, the appellants too placed reliance on so many decided cases.

Without much ado, there is no gainsaying the fact that this objection was well-taken. Indeed, it may only suffice to refer to the view of the lower court on this point. According to the court:

As the issue of acquisition was not pleaded in the lower court and without any comment in a (sic) judgment of the lower court, such non-issue is incompetent to be argued on appeal based on the case (sic, cases) of Akibu v. Oduntan (2000) FWLR (Pt.12) 1982, (2000) 13 NWLR (Pt. 685) 446, (2000) 7 SCNJ 189; Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546, 598 …, (1990) 3 SC (Pt. III) 63. (page 181 of the record)

In the first place, as the question of acquisition was not pleaded, it went to no issue, Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393, (1992) 3 SCNJ 98. The explanation is simple. Once pleadings are ordered, filed and exchanged, the parties, and indeed the courts, are bound by them. The implication, therefore, is that evidence must be led in accordance with the averments therein. That explains the impregnable prescription that evidence which is not in conformity with the pleadings go to no issue. Okoko v. Dakolo (2006) All FWLR (Pt. 336) 201, (2006) 14 NWLR (Pt. 1000) 401, (2006) LPELR – 2461 (SC) 19 – 20.

This ubiquitous principle in the vocabulary of pleadings applies with equal force whether the pleadings and evidence are those of the plaintiffs or the defendants, Akinloye v. Eyiyola (1967) 5 NSCC 16, (1968) NMLR 92, 95; Alli v. Aleshinloye (2000) FWLR (Pt. 15) 2616, 2653, paragraphs D – H, (2000) 6 NWLR (Pt. 660) 177, (2000) 4 SCNJ 264; Obulor v. Oboro (2001) FWLR (Pt. 47) 1004, (2001) 8 NWLR (Pt. 714) 25, (2001) 4 SC (Pt. 1) 77, pages 79 -80.

As this court had once explained, the rationale behind this principle of law is that by our adversary system of civil procedure in the High Court, facts are first erected on the pleadings before the trial of the case. This is to foreclose the likelihood of springing surprises at the trial and to circumscribe the compass or breadth of divergences. This inviolable or sacrosanct rule is only subject to the fairly liberal rules appertaining to the amendment of pleadings.

Thus, if and when parties join issues in the settled pleadings; amend and join issues on their amended pleadings, thenceforth, they are bound by them and so they cannot orbit outside the compass of the issues so joined in search of more luxuriant facts, Okoro v. Dakolo (supra) pages 42 – 43, paragraphs D – A; Eze v. Atasie (2000) FWLR (Pt. 13) 2180, (2000) 10 NWLR (Pt. 676) 470, (2000) 9 WRN 73, Emegokwe v. Okadigbo (1973) 1 All NLR (Pt. 1) 379, (1973) 4 SC 113, (1973) NMLR 192; Obmiami Brick and Stone (Nig.) Ltd v. African Continental Bank Ltd (1992) 3 NWLR (Pt. 229) 260; Akinterinwa v. Oladunjoye (2000) FWLR (Pt. 10) 1690, (2000) 2 NSCQLR 151, (2000) 4 SCNJ 149, (2000) 6 NWLR (Pt. 659) 92, (2000) LPELR – 358 (SC) 18; Aminu v. Hassan (2014) All FWLR (Pt. 725) 205, (2014) 5 NWLR (Pt. 1400) 287, (2014) LPELR – 22008 (SC) 24; Idahosa v. Oronsaye (1959) 4 FSC 166, (1959) SCNLR 407.

Others includes; National Investment and Properties Co. Ltd v. Thompson Organisation Ltd (1969) 1 All NLR 138, (1969) 1 NMLR 99, (1969) NCLR 110; Ogboda v. Adelugba (1971)1 ALL NLR 68; Ipinlaiye II v. Olukotun (1996) 6 SCNJ 74, (1996) 6 NWLR (Pt. 453) 148; Paul v. George (1959) SCNLR 510; Ajoke v. Oba (1962) 1 SCNLR 137; George v. United Bank for Africa Ltd (1972) 8 – 9 SC 264; Njoku v. Eme (1973) ECSLR 253, (1973) 5 SC 293; Okebola v. Molake (1975) 12 SC 61.

What is more, as learned counsel for the objector pointed out, without the leave of court such a fresh issue cannot be taken up on appeal. The cases on this point are too many that they need not delay us here. Howbeit, one or two of them may be cited, Ejiofiodomi v. Okonkwo (1982) 11 SC 74; Agbiti v. Nigerian Navy (2011) All FWLR (Pt. 570) 1223, (2011) 4 NWLR (Pt. 1236) 175, (2011) 13 WRN 1, (2011) LPELR – 2994 (SC); Stirling Civil Eng. (Nig) Ltd v. Yahaya (2005) All FWLR (Pt. 263) 628, (2005) 11 NWLR (Pt. 935) 181, (2005) LPELR – 3118 (SC); Gwede v. I.N.E.C. and Ors. (2014) 18 NWLR (Pt. 1438) 56, (2015) All FWLR (Pt. 767) 615, (2014) LPELR – 23763 (SC); Edjekpo and Ors. v. Osia and Ors. (2007) All FWLR (Pt. 361) 1617, (2007) 8 NWLR (Pt. 1037) 635, (2007) LPELR (1014) 1; Ibrahim v. Lawal (2015) LPELR – 24736; Dagaci of Dere and Ors. v. Dagaci of Ebwa and Ors. (2006) All FWLR (Pt. 306) 786, (2006) 7 NWLR (Pt. 979) 382, (2006) 1 SC (Pt. 1) 87, (2006) LPELR (911) 1; Petrojessica Enterprises Ltd and Anor. v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675, (1992) LPELR – 2915 SC.

In all, I find sufficient merit in the respondents’ preliminary objection and I, accordingly, sustain and uphold it. In consequence, I hereby strike out ground one of the notice of appeal for being incompetent.

Arguments on the sole issue for determination

Sole issue

Whether having regard to the pleadings and totality of evidence adduced, the court below was right in dismissing the appellants’ appeal?

Appellants’ contention

At the hearing of this appeal on 29 November 2016, learned counsel for the appellants, R. O. Sadik, adopted the appellants’ brief of argument, which as shown above, was deemed properly filed on November 29, 2016. He, equally, adopted the reply brief deemed properly filed on November 29 2016. He relied on the arguments on both processes as his argument in the appeal.

It was contended that the traditional history of the appellants reveals that their great ancestor known as Abinu was the first person to settle on the land in dispute, citing Ogedengbe and Ors. v. Balogun and Ors. (2007) All FWLR (Pt. 366) 615, (2007) 3 SC (Pt. II) 71, page 79, (2007) 9 NWLR (Pt. 1039) 380. In counsel’s submission, a claim of title must be made with certainty in a defined area. As such, before a declaration of title could be made, the land to which it relates must be ascertained with certainty.

Learned counsel pointed out that the appellants, at the trial, gave un-contradicted evidence that the said Abinu migrated from Ile-Ife and finally settled on all that parcel of land at Igaun which includes Ibasa which is the land in dispute. He further pointed out that the appellants established by evidence that the respondents and their forefathers were paying yearly tributes to the appellants and only stopped such tributes when the appellants instituted this case at the trial court. Somewhat, most curiously, although counsel abandoned the third issue which was on acquisition, he failed to abandon submissions on it on paragraphs 5.4 – 5.7 of the brief. Be that as it may, having struck out that issue, these arguments go to naught.

He inveighed against the lower court’s judgment which, in his submission, neglected the question of identify of land, contending that the identity of the land in dispute is not only crucial but has to be determined first before the issue of title to land, citing Balogun v. Akanji (2005) All FWLR (Pt. 262) 405, (2005) 10 NWLR (Pt. 933) 394, (2005) 3 – 4 SC 95 which relied on Idundun v Okumagba (1976) 9 – 10 SC 227, (1976) 1 NMLR 200, (1976) 10 NSCC 445, (1976) 9 – 10 SC (Reprint) 140 on the five methods of proving ownership of land. He, finally cited Kojo II v. Bonsie (1957) 1 WLR 1223, 1226.

On the question of customary tenancy, it was submitted that a customary tenant is entitled to use and occupy, subject to payment of rent and good behaviour; a claim by a tenant to share common or equal rights with the landlord or overlord is against allodial rights and the territorial duty of the tenant to pay rent to the allodial owner, Archibong and Ors. v. Ita and Ors. (2004) All FWLR (Pt. 197) 930, (2004) 2 NWLR (Pt. 858) 590.

Counsel maintained that where the respondents as customary tenants to the appellants fail to pay their rent, they are bound to forfeit such once there is a breach of the incidence of tenancy and the tenant would be liable to be visited with the punishment of forfeiture, Okpala and Ors. v. Okpu and Ors. (2003) FWLR (Pt. 150) 1623, (2003) 1 SC (Pt. III) 25. As pointed out earlier, although counsel abandoned the third issue of acquisition, he failed to apply to have the arguments on it in the brief (paragraphs 2.14 – 2.23, pages 4 – 5) to be struck out. He urged the court to allow the appeal.

Submissions of the respondents Dele Oloke, learned counsel for the respondents, adopted the brief filed on March 30, 2015 although deemed filed on November 29, 2016. In the said brief, it was pointed out that the appellants, by their pleadings and evidence, predicated their case on traditional evidence of settlement. In addition, they averred that the respondents were their customary tenants, citing paragraphs 5 – 8 of the further amended statement of claim, pages 65 – 69 of the record.

Counsel drew attention to paragraph 6 of the further amended statement of defence, page 53 of the record. He explained that the respondents therein denied the issue of customary tenancy. They, in fact, pleaded that their ancestors, Somolu and Okuseinde, who came from Igbein, originally, settled at the vast area of land which included the land in dispute.

He pointed out that the evidence of the appellants’ PW2 was at variance with the averments in paragraph 6 of the further amended statement of claim that it was Adejonlu that granted land to the respondents’ predecessors-in-title and not Abinu as PW2 claimed in his testimony. Counsel, further, pointed out that the evidence of PW2, at page 79 of the record, to the effect that Odeyale founded Olowotedo was, also, at variance with the averment in paragraphs 6 and 7 of the further amended statement of claim that Odeyale came to settle with Adejonlu at Olowotedo.

He, accordingly, invited the court to hold that the above pieces of evidence, at variance with the pleadings, must be discountenanced, Ademeso v. Okoro (2005) All FWLR (Pt. 277) 844, (2005) 14 NWLR (Pt. 945) 308, (2005) 30 WRN 178; Orizu v. Anyaegbunam (1978) 5 SC 21.

He canvassed the view that since, from the testimony of PW2, Odeyale, actually, founded Olowotedo and thus, was not the appellants’ customary tenants, that evidence decimate the foundation of their claim woven around customary tenancy.

Turning to the appellants’ traditional evidence, counsel drew attention to the evidence elicited from PW1 under crossexamination to the effect that Ibasa is the location where hunters roast animals which they kill in the bush. In addition, that palm oil is processed in Ibasa. He also referred to page 84 of the record where PW3 admitted that Ibasa is a place where theymake palm oil. He pointed out the consistency of these pieces of evidence with the averments in the respondents’ pleadings and indeed vindicated the meaning which the respondents ascribed to Ibasa in paragraph 9 of their further amended statement of defence, page 53 of the record. In his submission that also exposed the inconsistency in the appellants’ traditional evidence: a situation which is at odds with the settled position that for traditional evidence to sustain a claim for declaration of title, it must be cogent, direct and positive, Olujebu of Ijebu Oso v. Eleda of Eda (1972) SC 143; Ogun v. Akinyelu (2004) 12 SCNJ 196, (2004) 18 NWLR (Pt. 905) 362, (2005) All FWLR (Pt. 243) 601. On the contrary, where evidence of traditional history is contradictory and incredible, it would be treated as unreliable and must, hence be rejected and the action is liable to be dismissed, Salami v. Gbodoolu (1997) 4 NWLR (Pt. 499) 277, (1997) 4 SCNJ 196. Expectedly, counsel endorsed the approach (page 8 of the respondents’ brief) of the trial court at pages 124 and 125 of the record: an approach which was affirmed by the lower court. He noted that the submissions at page 5.01 of the appellants’ brief,on the identity of the land in dispute, bear no relationship with grounds 1 and 2 of the notice and grounds of appeal and the issues framed therefrom.

Against the background of the evidence on record and the concurrent findings thereon, he derided the sustainability of the appellants’ claim that their progenitor, Abinu, migrated and settled at Gaun which includes Ibasa. He maintained that the lower court considered the pleadings, evidence on record and the trial court’s findings thereon and affirmed the said findings, citing Onalaja JCA (pages 9 and 10 of the respondents’ brief). He urged the court to resist the temptation of interfering with the said concurrent findings, Kalango v. Governor, Bayelsa State (2009) All FWLR (Pt. 476) 1839, (2009) 1 – 2 SC. (Pt. II).

Resolution of the sole issue

My lords, permit me to point out, by way of prefatory remarks, that this court has warehoused an impressive corpus of jurisprudence on the genre of the accepted mode of establishing title of land known as traditional evidence or traditional history, Ohiaeri and Anor. v. Akabeze and Ors. (1992) 2 NWLR (Pt. 221) 1, (1992) LPELR – 2360 (SC) 39; Alade v. Awo (1975) 4 SC 215, (1975) 4 SC (Reprint) 150, (1975) LPELR – 400 (SC) 12; Idundun v Okumagba (1976) 9 – 10 SC 227, (1976) 1 NMLR 200, (1976) 10 NSCC 445, (1976) 9 – 10 SC (Reprint) 140.

This sort of evidence, namely, traditional evidence, which, in actuality, is a bit of ancient history, is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land, Dike and Ors. v. Nzeka II and Ors. (1986) 4 NWLR (Pt. 34) 144, (1986) LPELR – 945 (SC), pages 23 – 24, paragraphs D – A.

Somewhat most intriguingly, even very senior counsel do not seem to appreciate that in a strict sense, that type of evidence (traditional evidence) is no more than hearsay evidence, Alade v. Awo (1975) 4 SC 215, (1975) 4 SC (Reprint) 150, (1975) LPELR – 400 (SC) 12. True indeed, it is hearsay upon hearsay, Alade v. Awo (supra); Obasi and Anor. v. Onwuka and Ors. (1987) 3 NWLR (Pt. 61) 364, (1987) LPELR – 2152 (SC) 6 – 7.

This must be so because it deals with events which occurred long ago, and the history of which has been handed down from father to son, or from generation to generation, Alade v. Awo (supra); Obasi and Anor. v. Onwuka and Ors. (supra).

Almost always, the rights which the parties seek to establish by traditional evidence are such as had existed outside living memory or that “existed beyond the time of living memory …” per lord Cohen in The Stool of Abinabina v. Enyimadu (1953) 12 WACA 171, 172, (1953) A.C. 207 (italics supplied).

It is against this background that courts have recognised the obvious facts that the witnesses, who are called upon to give traditional evidence, would not necessarily be in a position to give an eye-witness account. Invariably, such witnesses cannot speak from personal knowledge as they merely repeat the story which their ancestors had told them. That notwithstanding, the law, in its wisdom, allows such evidence, most probably, in view of the fact that much of our past is practically unrecorded. Dike and Ors. v. Nzeka and Ors. (supra) 12, paragraphs A – F. Clear evidence of the wisdom of the law in this regard could be found in section 44 of the Evidence Act (applicable at the material time; now, section 66 of the Evidence Act, 2011) which delisted this category of evidence from the hearsay rule and elevated it to the status of admissible evidence, Obasi and Anor v. Onwuka and Ors. (supra).

This is the background to the prosecution which has crystalised from decided cases that once traditional evidence is found to be conclusive and cogent, there would be no need whatsoever to require further proof, Akunyili v. Ejidike (1996) 4 SCNJ 251, (1996) 5 NWLR (Pt. 449) 381, 417; Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301, (1988) Vol. 19 NSCC 180, (1988) 2 SCNJ 104; Amajideogu v. Ononaku (1988) 2 NWLR (Pt. 78) 614.

In consequence, where a court finds evidence of traditional history to be cogent, neither contradictory nor in conflict or competition with that of the defendant, and accepts it, it would be sufficient to support a claim or declaration of title to land, Adesanya v. Aderonmu and Ors. (2000) FWLR (Pt. 15) 2492, (2000) 9 NWLR (Pt. 672) 370, (2000) 6 SC (Pt. 11) 18, (2000) LPELR – 1450 (SC) 19, paragraphs A – C; Alade v. Awo (1975) 4 SC 215, 228, (1975) 4 SC (Reprint) 150, (1975) LPELR – 400 (SC) 12; Olujebu of Ijebu Oso v. The Eleda of Eda (1972) SC 143, 151; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188, (1990) 3 WRN 25; Idundun v Okumagba (1976) 9 – 10 SC 227, (1976) 1 NMLR 200, (1976) 10 NSCC 445, (1976) 9 – 10 SC (Reprint) 140; Aikhionbare-Ohen-Eriaria of Evboriara and Ors. v. Omeregie Enogie of Ev Buoba-Ohen Village and Ors. (1976) LPELR – 271 (SC) 18, paragraphs B – C; Alli and Anor. v. Aleshinloye and Ors. (2000) FWLR (Pt. 15) 2616, (2000) 6 NWLR (Pt. 660) 177, (2000) 4 SCNJ 264, (2000) LPELR – 427 (SC) 83, paragraphs B – D; Aikhionbare v. Omoregie (1976) 12 SC 11 at 27.

It has to be emphasized, however, that these broad prescriptions are hedged around with qualifications. Thus, it is now been settled that traditional evidence must be such as to be consistent and properly link the plaintiff with the traditional history relied upon, Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413, (1988) 5 SCNJ 1. Above all, it is not sufficient for a party who relies for proof of title to land on it (traditional evidence), as in the instant case, to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial, Akinloye v. Eyiyola (1967) 5 NSCC 16, (1968) NMLR 92; Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Anyanwu v. Mbara (1992) 3 NWLR (Pt. 242) 386, 399, (1992) 6 SCNJ 22, (1992) LPELR SC 266; Alli and Anor. v. Aleshinloye and Ors. (2000) FWLR (Pt. 15) 2616, (2000) 6 NWLR (Pt. 660) 177, (2000) 4 SCNJ 264, (2000) LPELR – 427 (SC) 27 – 28, paragraphs E – B.

Such a party is bound to plead such facts as – (1) who founded the land; (2) how the land was founded and (3) the particulars of the intervening owner through whom he claims, Akinloye v. Eyiyiola (supra); Olujinle v. Adeogbo (supra); Adejumo v. Ayantegbe (supra); Anyanwu v. Mbara (supra) 386, 399; Alli and Anor. v. Aleshinloye and Ors. (supra) 27 – 28, paragraphs E – B.

And now this! Where such a party projects two competing histories of his ownership in support of his claim, he would have failed to prove the case he set out to propound. If he is the plaintiff, his claim must be dismissed. If he is the defendant, he would have failed to make out a defence against the traditional history of the plaintiff, Ohiaeri and Anor. v. Akabeze and Ors. (1992) 2 NWLR (Pt. 221) 1, (1992) LPELR – 2360 (SC) 19, paragraphs A – C.

How did the appellants fare at the lower courts?

As indicated at the outset of this judgment, issues were joined in the settled pleadings: pleadings which were exchanged; amended and exchanged. While the appellants (as plaintiffs) wove their case around the testimonies of their seven witnesses, the respondents (as defendants) put across their defence through the testimonies of their five witnesses.

Did these witnesses of the appellants (as plaintiffs) fare well apropos the averments in the pleadings? I would, at this point, invite the trial court and the lower court to answer the question. First, the trial court. After summing up the case of the plaintiffs (now, appellants), as put forward by the PW2, ‘the plaintiffs’ principal witness, pages 115 of the record, the court found that:

… this witness did not give sufficient historical and traditional evidence. Being a principal witness, his evidence was comparatively terse when compared with that if the key witness of the defendant. His cross-examination revealed much more which I will highlight in this review of evidence. (italics supplied for emphasis)

The court went ahead to highlight what it referred to as the “concessions” of the said witness, (page 116 of the record). It then, proceeded, in tandem with the age-long rule in Mogaji & Ors. v. Odofin & Ors. (1978) 1 LRN 212, (1978) 4 SC 91, (1978) 11 NSCC 257 to weigh the testimonies of the other witnesses of the parties on an imaginary scale, (pages 116 – 123 of the record). It announced its findings thus:

From my observations… during the review of the evidence of all the witnesses for plaintiffs and defendants, I have found that the evidence of the plaintiffs do not agree with their pleadings. Most of the witnesses, particularly, their principal witness, second PW, Joseph Akinwunmi, not only gave contradictory evidence but during cross-examination confirmed most of the assertions and claims of the defendants. I have highlighted those differences… such as the founding of Olowotedo, granting of land to Odeleye.

The vital point which goes in favour of the defendants is the answer to the nature and type of Igaun people. Both the plaintiffs and the defendants agree that Igaun people are fishermen, live near Ogun river and although some of the plaintiffs’ witnesses quickly added that some of the Igaun people farmed, but predominantly they are fishermen. The evidence of the defendants agreed to (sic) their claim in that both Igaun and Ibassa are villages belonging to Igbein people. There is sufficient evidence to that effect…

What of the particular evidence that there is a Baale at Ibassa by name, Bamgboye, son of Okuseinde, who derived his authority from the Igbein people which evidence was not contradicted and which I accept… …it was clear from the traditional evidence of both parties that the evidence of defendants by far outweighed those of the plaintiffs and that will entitle the defendants to judgment. The plaintiffs have failed to discharge the onus placed on them… I will also assess existing factual evidence of contemporary acts and events… The defendants gave evidence of several acts of ownership, they built houses, this was admitted by the plaintiffs. Even by (sic) Mr. Awoyinfa admitted this… They created streams, they worshipped idols and on top of it, they sold land to Dr. Bankole to which the plaintiffs did not object — all these are consistent acts of ownership. (pages 124-125 of the record; italics supplied for emphasis]

The lower court affirmed these findings. Speaking for the said court, Onalaja JCA found that:

…in the consideration of the cases of the parties as they testified, the learned trial judge applied the rule in Mogaji v. Odofin (1978) 3 – 4 SC 91 … The learned (sic) judge concluded rightly that (the) appellants did not discharge the burden of proof placed on the appellants (sic, them) and based on the findings of facts dismissed the claims. The learned trial judge also relied on the assessment and ascription of probative value based on the credibility of witnesses.

… After a careful consideration of the findings of facts… I find the findings of facts not to be perverse as they were borne out from the evidence… Evaluation, assessment of evidence and ascription of probative value to evidence is primarily the function of the learned trial judge and when based on credibility of witnesses, an appellate court is handicapped for lack of opportunity of seeing, hearing and watching the demeanours (sic) of the witnesses as the appeal court deals with printed record. The only way open to the appeal court to interfere is where it was established that the learned trial judge failed to take advantage of having seen and heard the witnesses then an appeal court may interfere, Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) 320; Woluchem v. Gudi(1981) 5 SC 291, (1981) 5 SCNLR 372, (1981) 12 NSCC 216. (page 183 of the record; italics supplied)

Now, it is evident that the concurrent findings of the lower courts were, firmly, anchored on the redoubtable decisions of this court. As shown above, it has been, tolerable, settled that if and when parties join issues in the settled pleadings; amend and join issues on their amended pleadings, thenceforth, they are bound by them and so they cannot orbit outside the compass of the issues so joined in search of more luxuriant facts.

In one word, evidence (and this was the concurrent findings of the lower courts with regard to the testimonies of the plaintiffs/ appellants’ witnesses) which is at variance with the pleadings go to no issue, Okoro v. Dakolo (supra) 42 – 42, paragraphs D – A; Eze and Ors. v. Atasie and Ors (supra) 2180, 2189; Emegokwe v. Okadigbo (supra); Obimiami Brick and Stone (Nig.) v. A. C. B. Ltd (supra); Akinterinwa and Anor. v. Oladunjoye (supra); Aminu and Ors. v. Hassan and Ors. (supra); Idahosa v. Oronsaye (supra); NIPC Ltd v. Thompson Organisation Ltd (supra); Ogbodo v. Adelugba (supra); Ipinlaiye II v. Olukotun (supra) 165 – 166; Paul v. George (supra); Ajoke v. Oba (supra); George v. UBA Ltd (supra); Njoku v. Eme (supra); Oke-Bola v. Molake (supra).

With regard to the question of traditional evidence of the plaintiffs/appellants, the trial court’s findings, affirmed by the lower court, were that:

Most of the witnesses, particularly, their principal witness, second PW, Joseph Akinwunmi, not only gave contradictory evidence but during crossexamination confirmed most of the assertions and claims of the defendants. I have highlighted those differences… Such as the founding of Olowotedo, granting of land to Odeleye.

The vital point which goes in favour of the defendants is the answer to the nature and type of Igaun people.

Both the plaintiffs and the defendants agree that Igaun people are fishermen, live near Ogun river and although some of the plaintiffs’ witnesses quickly added that some of the Iganun people farmed, but predominantly they are fishermen. The evidence of the defendants agreed to (sic) their claim in that both Igaun and Ibassa are villages belonging to Igbein people. There is sufficient evidence to that effect…

…It was clear from the traditional evidence of both parties that the evidence of defendants by far outweighed those of the plaintiffs and that will entitle the defendants to judgment. The plaintiffs have failed to discharge the onus placed on them… (pages 124 – 125 of the record; italics supplied for emphasis)

Again, these findings are in the good and cherished company of the attitude of this court to the mode of establishing title to land by traditional evidence. As already shown above, traditional evidence must not only be cogent; it must neither be contradictory nor in conflict or competition with that of the defendant for the court to accept it before it would be sufficient to support a claim or declaration of title to land.

This, according to the lower courts, the plaintiffs/appellants failed to do; hence, their case was, rightly dismissed, Adesanya v. Aderonmu and Ors. (supra); Alade v. Awo (supra); Olujebu of Ijebu Oso v. The Eleda of Eda (supra); Nwosu v. Udeaja (supra); Idundun v. Okumagba (supra); Aikhionbare – Ohen – Eriaria of Evboriara and Ors. v. Omeregie Enogie of Ev Buoba – Ohen Village and Ors (supra); Alli and Anor. v. Aleshinloye and Ors. (supra); Akhionbare v. Omoregie (supra).

Worse still, as the trial court found at page 125 of the record: a finding affirmed by the lower court “The plaintiffs have failed to discharge the onus placed on them.”True, indeed, they (plaintiffs/appellants) underrated the enormity of the onus on them for their traditional evidence, as the trial court found, was not only inconsistent; their so-called traditional evidence was not properly linked with them (plaintiffs),Owoade v. Omitola (supra).

Even then, there was another glaring omission in the case of the plaintiffs/appellants. The rationale of all binding authorities is that it is not sufficient for a party (such as the appellants herein) who relied for proof of title to land on it (traditional evidence) to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial, Akinloye v. Eyiyola (supra); Olujinle v. Adeogbo (supra); Adejumo v. Ayantegbe (supra); Anyanwu v. Mbara (supra); Alli and Anor. v. Aleshinloye and Ors. (supra).

Simply put, they (the plaintiffs/appellants) failed to discharge the burden of proof on the pleadings as required of claimants of title to land through traditional evidence, Akinloye v. Eyiyola (supra); Olujinle v. Adeogbo (supra); Adejumo v. Ayantegbe (supra); Anyanwu v. Mbara (supra); Alli and Anor. v. Aleshinloye and Ors. (supra). Little wonder then why the trial court found that the principal witness, PW2, “did not give sufficient historical and traditional evidence. Being a principal witness, his evidence was comparatively terse when compared with that of the key witness to the defendants,” (page 116 of the record; italics supplied for emphasis).

Finally, attention may now be drawn to the finding of the lower court that “the learned trial judge also relied on the assessment and ascription of probative value based on the credibility of witnesses,” (page 183 of the record; italics supplied for emphasis).

My lords, since trial court’s ascription of probative value was based on the credibility of witnesses, I have an obligation to remind your lordships that every trial judge is in a better position than the appellate court to decide the issue of credibility of the witnesses. The reason is not farfetched. He (the trial judge) has the singular advantage of seeing and observing the witnesses. He watches their demeanour; candour or partisanship; their integrity and manners. These advantages are not normally enjoyed by an appellate court which only has the cold printed evidence to contend with, Nwankpu and Ors. v. Ewulu and Ors. (1995) 7 NWLR (Pt. 407) 269, (1995) LPELR – 2107 (SC) 32, paragraphs A – B.

What is more, as a vital area of credibility, it is only the trial court which saw and watched the demeanour of the witness that has the exclusive role of watching the mannerism, habits and idiosyncrasies of the witness and attach probative value to the evidence presented before it, Kaydee Ventures Ltd v. The Hon.Minister of Federal Capital Territory and Others (2010) All FWLR (Pt. 519) 1079, (2010) 7 NWLR (Pt. 1192) 171, (2010) LPELR – 1681 (SC) 60, pargaraphs C-E; Makanjuola v. Balogun (1989) 3 NWLR (Pt . 108) 192, 218; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360, (1985) 4 SC 250, (1985) LPELRSC 14/1984; Duru v. Nwosu (1989) 4 NWLR (Pt. 113) 24, page 39, (1989) 7 SCNJ 154; Lagga v. Sarhuna (2008) 16 NWLR (Pt. 1114) 427, (2008) 6 SCNJ 181, (2008) 6 -7 SC (Pt. 1) 101, LPELR – 1740 (SC) 66, (2009) All FWLR (Pt. 455) 1617, paragraphs A – E.

This is the basic premise that yielded the logic in the reasoning of the decisions of this court that where the issue is that of credibility of witnesses, the appellate court has a very limited, if any, scope to interfere. Thus, it (the appellate court) can only do so when the trial court decided to believe a witness quite contrary to the trend of accepted evidence or where oral testimony is contrary to the contents of a written document, Ndukwe v. Acha and Ors. (1998) 6 NWLR (Pt. 552) 25, (1998) LPELR – 1977 (SC) 14, paragraphs A – B;Agbonifo v. Aiwereoba and Anor. (1988) 1 NSCC 237, page 245, (1988) 1 NWLR (Pt. 70) 325, (1988) 2 SCNJ 146, (1988) 2 SC (Pt. 11) 64.

In effect, therefore, unless the trial court adduces a wrong reason for believing or disbelieving a witness, an appellate court would, seldom, interfere with its ascription of credibility to witnesses. Put differently, it is only where the appellate court, either because the reasons given by the trial judge are not

satisfactory or because it, unmistakably, so appears from the evidence, is satisfied that the trial judge has not taken proper advantage of his having seen and heard the witnesses, that it could properly interfere. In such a case, the matter would then become at large in the appellate court. This is as much as settled principle of English Law; Watts (or Thomas) v. Thomas (1947) 1 All ER 582; as it is a settled position in this country, Nwankpu and Ors. v. Ewulu and Ors. (1995) 7 NWLR (Pt. 407) 269, (1995) LPELR – 2107 (SC) 32, parargraphs C – E.

Instructively, the lower court, prior to its affirming of the position of the trial court, gave a careful consideration of the findings of facts. It found “the findings of facts not to be perverse as they were borne out from the evidence…” (page 183 of the record). It rightly concluded that:

Evaluation, assessment of evidence and ascription of probative value of evidence is primarily the function of the learned trial judge and when based on credibility of witnesses, an appellate court is handicapped for lack of opportunity of seeing, hearing and watching the demeanours (sic) of the witnesses as the appeal court deals with printed record. The only way open to the appeal court to interfere is where it was established that the learned trial judge failed to take advantage of having seen and heard the witnesses then an appeal court may interfere, Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) 320; Woluchem v. Gudi (1981) 5 SC 291, (1981) 5 SCNLR 372, (1981) 12 NSCC 216. (page 183 of the record; italics supplied)

As the appellants did not succeed in impeaching the concurrent findings of the lower courts by accentuating their perversity, I have no justification for interfering with them, Afolayan v. Ogunrinde and Ors. (1990) 1 NWLR (Pt. 127) 369, (1990) LPELR (198) 1 (SC), pages 20 – 21, paragraphs F – B; Enang v. Adu (1981) 11 – 12 SC 25, page 42, (1981) 5 SC 291, (1981) NSCC 453; Okagbue v. Romaine (1982) 5 SC 133, pages 170 – 171; Lokoyi v. Olojo (1983) 2 SCNLR 127, (1983) 8 SC 61, pages 68 – 73, (1983) All NLR 461; Ojomu v. Ajao (1983) 2 SCNLR 156, (1983) 9 SC 22, page 53; Alade v. Alemuloke (1988) 1 NWLR (Pt. 89) 201, page 212 … In all, I find no scintilla of merit in the appellants’ complaint against the judgment of the lower court. I therefore, unhesitatingly enter an order dismissing this appeal. Appeal dismissed.