Adewale Alabi Eboade & Anor Vs Raufu Olaniyan Atomesin & Anor (1997)
LAWGLOBAL HUB Lead Judgment Report
L. KUTIGI, J.S.C.
The plaintiffs’ claims against the defendants jointly and severally are contained in para. 39 of the Amended Statement of Claim. They read as follows –
“(a) Declaration to a Statutory Right of occupancy to that piece or parcel of land situate, lying and being at Atomesin Compound, Nalende, Ibadan shown on plan No. FA 2821 drawn by Mr. A O. Adebogun licensed Surveyor on 2nd February, 1983.
(b) The sum of One Thousand Naira (1,000.00) being general damages for trespass committed by the defendants, their servants and agents on the said parcel of land on 20th day of February, 1983.
(c) An order of injunction restraining the defendants, their servants, agents privies or anyone claiming through them from committing any further acts of trespass on the said parcel of land.”
The parties filed and exchanged pleadings. The defendants’ Statement of Defence and counter-claim contained a counter-claim in para. 41 thus –
“Wherefore the defendants jointly and severally counter-claim against the plaintiffs for the total sum of N1,860.00 (One Thousand Eight Hundred and Sixty Naira) being total rent admitted by the plaintiffs to have been collected from the tenants on the disputed land which is the property of the defendants and their family.”
During the trial of the suit in the High Court seven witnesses testified for the plaintiffs while four witnesses testified for the defendants.
The learned trial judge in a reserved judgment considered the case put forward by each side along with the evidence and came to the conclusion that on the balance of probabilities, the plaintiffs proved their case and were entitled to succeed. The defendants’ counter claim failed and was dismissed. He concluded his judgment on pages 75-76 of the record thus –
“Finally, I hold that the plaintiffs are entitled to succeed in this action and the plaintiffs’ claims are hereby allowed.
I therefore hereby declare that the plaintiffs are entitled to a Statutory Right of occupancy to all that piece and parcel of land lying and situate at Atomesin Compound, Inalende, Ibadan which is more particularly shown on plan No. FA 2021 and FA 11,550 and tendered as Exhibits C and D in this action.
I also hereby award a sum of N600.00 (Six hundred naira) being general damages for trespass committed by the defendants on the said land on the 20th day of February, 1983.
I also make an Order of Injunction restraining the defendants, their servants, privies or anyone claiming through them from committing further acts of trespass on the said land.
The counter-claim filed by the defendants fails and is hereby dismissed. ”
Aggrieved by the decision of the High Court the defendants appealed to the Court of Appeal holden at Ibadan. The appeal was unanimously dismissed with costs against the defendants.
Still not satisfied with the judgment of the Court of Appeal the defendants have now further appealed to this court.
In compliance with the Rules of Court, the parties filed and exchanged briefs of argument. These were adopted at the hearing. Chief Adepoju, Learned Counsel for the defendants has in his brief, submitted four issues for determination in this appeal as follows –
“1. Whether the Court of Appeal was right in holding that the trial Judge did not fall into error in the manner in which he proceeded to resolve the conflict in traditional history before him.
- Whether the plaintiffs could bring an action in the name of Atomesin family for title to land without joining the said Atomesin family as a party when the plaintiffs are not related to the said Atomesin family.
- Whether the trial Judge had correctly appraised the evidence and whether the Court of Appeal was right to have upheld the decision of the trial court when findings of the trial court are not supported by the evidence led by the plaintiffs to prove their case.
- Whether it was not necessary for the trial court to have visited the locus when neither the trial court nor the Court of Appeal found in their judgments any defined physical features of the area of the land in dispute.”
Issues (1) & (3) will be treated together while issues (2) & (4) will be taken separately thereafter.
Issues (1) & (3)
Defendants’ counsel submitted that watching both parties in the witness box and relying on such observations to decide conflict in traditional evidence is not the correct approach. That the proper approach once the court recognised that there were conflicts in the traditional histories of the parties was to resolve the conflicts in the light of recent facts established by evidence before it and not by proceeding to prefer the evidence of one party to the other on the basis of demean our of witnesses as the High Court had done in this case and confirmed by the Court of Appeal. He referred to page 71 of the record lines 5 – 9 and the cases of –
Kojo & Anor v. Bonsie (1957) 1 WLR 1223
Adeyemo v. Popoola (1987) 4 NWLR (Pt. 66) 578
Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 S.C.
He said failure by the trial court to properly apply the test as laid down in Kojo II v. Bonsie (supra) has occasioned a miscarriage of justice.
It was also submitted that the judgment of the learned trial Judge did not demonstrate in full or at all a dispassionate consideration of the issues properly raised and neither did it reflect the result of such an exercise. That it was not enough for court to say that it believed or disbelieved the witnesses without a proper evaluation of the evidence and that if it had done so it would have been clear that the plaintiffs did not prove their title to the land in dispute more especially when the identity of the land was not proved. That the plaintiffs and their witnesses contradicted themselves on material facts and that the Court of Appeal ought to have allowed the appeal. He referred to the case of Ozigbe & Ors v. Chief Aigbe & ors (1977)7 SC 1.
Chief Akande learned counsel for the plaintiffs on the other hand, submitted that the trial High Court was right in its approach to the traditional history led by the parties before it. That the learned trial Judge appraised the evidence on both sides and found the evidence led by the plaintiffs more plausible. The Judge also clearly did not believe the traditional history of the defendants and he gave his reasons particularly when the defendants according to their pleadings pleaded settlement but gave evidence of a grant. He referred to the judgment on page 71 of the record lines 4 – 25. It was also submitted that the learned trial Judge having accepted the traditional history of the plaintiffs ought to have stopped there without any further reference to acts of possession of ownership by the parties even though the plaintiffs still won. He cited the cases of Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 322; Abudulai v. Manue (1944) 10 WACA 172; Thomas v. Holder (1946) 12 WACA 78. He said the Court of Appeal was therefore right in confirming the judgment of the trial court having found that the judgment was fully supported by evidence and that there was nothing done against the rule in Kojo & Anor v. Bonsie (supra).
It was further submitted that the learned trial Judge properly evaluated the evidence on both sides in this case and also applied the relevant laws as well. He referred to pages 65 – 72 of the record. That since it is not the law for the Court of Appeal to substitute its own views for that of the lower court which had properly reviewed and evaluated the evidence before it, the Court of Appeal in this case was right to have affirmed the judgment of the trial High Court. We were referred to Akinloye v. Eyiyola (1968) NMLR 92, Awoyale v. Ogunbiyi (1985) 2 NWLR (Pt.10) 861; (1986) 4 SC 98. and Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22 at 34. He also said that the defendants who pleaded settlement but who gave evidence of a grant only qualified to have their case dismissed as was done in the trial court.
Now, I think simply put, the proposition of law relating to traditional history as decided in Kojo II v. Bonsie (supra). is that where there is a conflict of traditional history, demeanour is of little guide to the truth, and that the best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.
The plaintiffs in their Amended Statement of Claim pleaded in para. 6 that
“The land in dispute verged red on plan No. FA 11,550 and forms part of a larger area of land settled upon by one Asumo, the ancestor of the plaintiffs about 200 years ago.”
The defendants also in their Statement of Defence and Counter-Claim pleaded in para. 7(a) thus –
“One Iyiola, an Oro Worshipper who was the defendants’ great grand father and a warrior left Ika near lroko, Oyo Road, Ibadan to settle at Oke Oloro, Sapati, Ibadan where he begat Adekunbi and Akinlotan.”
They had pleaded in para. 6(a) that:-
“The piece or parcel of land in dispute is part of a large tract of land owned and continuously and undisputably possessed by Eboade Iyiola family and situate at Eboade Iyiola Compound, Inalende, Ibadan for over 200 years ago.”
It is therefore doubtless that both sides in this case pleaded settlement as their root of title.
In his evaluation of the evidence led by the parties the learned trial Judge had this to say on page 68 of the record –
“The plaintiffs in this matter traced their root of title to one Asunmo who they described as their ancestor and original owner of the land in dispute. They also narrated how the land got into possession of his descendants……………….”
And on page 69 he continued thus –
“On this issue, the defendants testified that one Adekunbi who was their ancestor once lived with one Okebukola who was the original settler on the larger piece of land including the land in dispute. The 2nd defendant narrated how his ancestor settled at Aiyesome now called Inalende. The 1st witness for the defendants, one Joseph Olutayo Okebukola who claimed to be the son of Okebukola testified that his father granted the land in dispute to the family of the defendants. He said further that One Ojo Atomesin, one Olukanmbi, one Atori and one Eboade came to settle at Inalende with his father. He said his father granted the land to Eboade. Eboade according to the 2nd defendant was a son of Adekambi. One would see straight away that the evidence of 2nd defendant and that of 1st defendant witness on the point of how the land was acquired by the Eboade family as well as to whom the grant was made is conflicting. The 2nd defendant said Adekunbi settled on the land and he gave birth to Eboade and his other children there; while the 1st defendant’s witness said that the land was granted to Eboade …………”
So, clearly the rule relating to traditional history stated in Kojo II v. Bonsie (above) will only apply where the two parties pleaded traditional histories and led evidence in accordance with their pleadings at the trial. It will not apply, as in this case, where the defendants pleaded “settlement” and led evidence showing a “grant”. The pleaded settlement on which no evidence was led would be regarded as abandoned, while evidence of a “grant” which was not pleaded would be regarded as going to no issue vide African Continental Seaways Ltd v. Nigerian Dredging Roads & General Works Ltd (1977) 5 SC 235. The defendants never amended their pleadings throughout the trial as they should have done. The rule in Kojo II v. Bonsie (supra), I believe, is not intended to be applied where one side has completely failed to put forward a traditional history capable of being tested and compared with the other side, which has pleaded and led evidence of traditional history.
It is settled that where a court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. The learned trial Judge accepted the evidence of traditional history led by the plaintiffs and rejected that of the defendants who as I said based their root of title on settlement, while the case presented at the trial was one of a grant of the land in dispute. On page 71 of the record the trial court observed – and this is what is being attacked now:
“Watching both parties in the witness box, I find easier to believe the evidence of the plaintiffs and their witnesses. The evidence of the 2nd defendant and the defendants’ were tainted with lies and exaggerations. The evidence of the 1st defendants’ witness is unreliable. Those of the 2nd and 3rd defendants’ witnesses are manifestly unreliable. In fact, I had to warn both of them during the proceedings. For example, the 2nd witness for the defendants testified that the land in dispute was never used for anything. Immediately, he changed his testimony and said that members of the defendants’ family were trading on the land before a house was built on it. This is contrary to the testimony of the 2nd defendant himself.
The 3rd defendants’ witness who like the 2nd claimed to be boundary man of the defendants also testified that the land in dispute was never used as a market.
On the balance of probabilities, I hold that the plaintiffs story about the title of their ancestors is more plausible and I hold that Asunmo their ancestor was the founder of the compound now known as Atomesin Compound.”
So that although the defendants and their witnesses were disbelieved, the learned trial Judge gave his reasons fordoing so. That was as it should have been. I think he was right. I have also, like the Court of Appeal, perused the record and I am satisfied that the learned trial Judge fully appraised and gave probative value to relevant evidence before making his findings and coming to the conclusion which hereached. In a suit for a declaration of title the onus of proof lies on the plaintiff to prove his case on a balance of probabilities and he must succeed on the strength of his own case and not on the weakness of the defendants’ case (see Kodilinye v. Odu (1935) 2 WACA 336; Aderemi v. Adedire (1966) NMLR 398).
And I must say that I agree with the submission of Chief Akande for the plaintiffs, that once the radical title has been pleaded and proved, acts of ownership or possession resulting from such title, need no longer be considered for they are then non-issues. (See Fasoro & Anor v. Beyioku & Ors (1988) 2 NWLR (Pt. 76) 263. Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301). Therefore in this case where the two sides each pleaded settlement as its root of title, the learned trial Judge having found that the plaintiffs proved their radical title to the land in dispute, needed not to have gone further to consider acts of ownership or possession by the parties at all.
Issues (1) & (3) are therefore resolved against the defendants.
Issues (2)
The issue here is simply whether the Atomesin family which the plaintiffs said they represent ought to have been parties to the suit simply because the defendants claimed that the plaintiffs were not so related. I have stated above that the learned trial Judge accepted plaintiffs’ traditional history while he rejected that told by the defendants. The defendants and their witnesses were disbelieved. It was common ground that the plaintiffs live in Atomesin Compound. The learned trial Judge was therefore right in my view when he stated that although the plaintiffs never showed how they came to be known as Atomesin, they nevertheless proved the title of their ancestor as the founder of the compound or land in dispute and therefore entitled to succeed. The defendants never proved that the plaintiffs were not members of Atomesin family as their story was entirely rejected by the trial court. I cannot see how failure to join Atomesin family as a party to the suit would have helped to advance the defendants’ case who were disbelieved. The Court of Appeal had this to say in the lead judgment on page 184 of the record –
“………it seems to me that the learned trial Judge was justified in holding from the evidence before him as he did that the plaintiffs are members of Atomesin family and particularly when the defendants were not able to prove that Ojo Gbogiyan had children ……….
The members of Atomesin family seem to have not only common interest in the action but also common grievance ”
Really, if anyone is to complain about the joinder or non-joinder of Atomesin family, that should be the Atomesin family itself. If that family is different from the one represented by the plaintiffs herein, it has never applied to be joined as party. The defendants also never applied that it be made a party to the suit. Clearly, “Atomesin” or no “Atomesin” the plaintiffs having proved to the satisfaction of the trial court that their ancestors founded the land in dispute are entitled to judgment in their favour. Issue (2) is accordingly resolved against the defendants.
Issue (4)
The defendants complained that owing to the peculiar nature of the case especially when the physical features of the land in dispute was in issue, the best way of resolving that issue was for the learned trial Judge to have visited the site, the locus. They claimed that the identity of the land in dispute was not clear even though plans were tendered at the trial. Counsel referred to para. 15 of the Amended Statement of Claim and to the evidence of 1st plaintiff page 45 lines 15, 2nd defendant page 57 lines 14-20 and 1st witness for the defendant page 59 lines 24-27, and page 60 lines 23-29. He said the learned trial Judge should have substituted his eyes for the ears and examine the physical features of the land in dispute as allowed by the law of Evidence. That failure to visit the locus in quo by the learned trial Judge has deprived him of the opportunity of knowing the truth and has occasioned a miscarriage of justice.
The plaintiffs on the other hand, submitted that the identity of the land in dispute was never an issue between the parties. It was submitted that the plaintiffs and the defendants and the witnesses on both sides gave evidence to the effect that they knew the land in dispute. Counsel referred to the evidence of plaintiffs and their witnesses on page 44-53 of the record, and that of the defendants and their witnesses on pages 55-61. We were also referred to the address of counsel for the defendants at the trial on page 62 line 27-28 where it was conceded that there was “no dispute as to the identity of the land in dispute”. Counsel said what was admitted needed no further proof and it was unnecessary on the facts for the learned trial Judge to have visited the locus and that the Court of Appeal rightly confirmed the decision of the High Court.
I have already stated at the beginning of this judgment that the plaintiffs and the defendants respectively called seven and four witnesses at the trial in the High Court. Needless to say that all the witnesses called by the plaintiffs clearly stated in their testimonies before the court that they knew the land in dispute (see pages 44, 48, 49, 51, 52 and 53 of the record respectively). The defendants and their witnesses testified from pages 55 to 62 of the record.
- Adeniyi Adekola Ehoade (2nd defendant) testifying on page 55 said
I know the land in dispute which is at Inalende market………….”
- Joseph Oketayo (1st witness for the defendants) also said on page 59 –
“I know the 6th plaintiff’s witness.
I know the defendants. I know the land in dispute.”
- Lamidi Anwo (2nd witness for the defendants) said on page 50
I know the defendants. I know the land in dispute. It belongs to Eboade.”
- Owoade Ajanga (3rd witness for the defendants) testified on page 61 thus-
“I know the defendants. I know the land in dispute.”
The defendants then closed their case. Thereafter, their counsel one Mr. Odeleye addressed the court. His opening sentences on page 62 read –
“Refers to the Amended Statement of Claim. No dispute as to the identity of the land in dispute. Parties took the action in a representative capacity.”
The learned trial Judge in his judgment on page 68 of the record observed thus –
“The first point of note is that there is no dispute about the identity of the land in dispute. The defendants’ counsel in his final submission conceded this point.”
The Court of Appeal in its lead judgment on page 192 also stated as follows
Both sides seem to be agreed as to the situation of the land in dispute from the evidence of several witnesses on both sides.
Evidence had been adduced of land that formed boundary with the land in dispute, and the learned defendants’ counsel in the lower court even conceded that there was no dispute as to the identity of the land, apart from the fact that the plans filed by both parties A & B – confirmed that the parties know the land they were talking about. It is therefore abundantly clear from the record that the parties know and were agreed as to what land they were litigating upon, its features and its area. What further uncertainty could there arise to these matters My answer is, NONE (vide Ajibade Garba v. Abu Akacha (1966) NMLR 62 at 64 and Maberi v. Alade (1987) 2 NWLR (Pt. 55) 101).”
I endorse the views expressed above. There was not a thread of doubt that the parties knew the land over which they were litigating as clearly demonstrated by testimonies of witnesses on both sides. There was therefore absolutely no necessity for the trial court to have visited the locus or site of the disputed land. I find no merit in issue (4) which is hereby resolved against the defendants.
All the four issues having been resolved against the defendants, the appeal must, of necessity, fail. It is accordingly dismissed with one thousand Naira (N1,000.00) costs against the defendants.
Other Citation: (1997) LCN/2758(SC)
