Lawani Alli & Anor. V. Chief Gbadamosi Abasi Alesinloye & Ors. (2000)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

By a writ of summons issued on the 11th day of December, 1987 in the Ibadan Judicial Division of the High Court of Justice, Oyo State, the plaintiffs, for themselves and on behalf of the Oroye family, instituted an action jointly and severally against the 1st to the 5th defendants as representatives of the Alesinloye family and the 6th to the 9th defendants claiming as follows:-

(a) Declaration of Title to a Statutory Right of Occupancy over all that piece or parcel of land situate, lying and being at Igbo-Ori-Oke Express Road, Ibadan, the Survey plan of which is filed with this Statement of Claim.

(b) The sum of N20,000.00 (Twenty Thousand Naira) being special and general damage for continuing acts of trespass committed and still being committed by the defendants on the land in dispute.

(c) An order of injunction restraining the defendants, their servants, agents, privies or any person claiming through or under them from committing further acts of trespass on the said land in dispute”.

Pleadings were ordered in the suit and were duly settled, filed and exchanged. At the subsequent trial, both parties testified on their own behalf and called witnesses.

The case, as presented by the plaintiffs, briefly, is that the land in dispute was originally acquired and owned by Opeagbe, a great warrior in Ibadan over 200 years ago. This original acquisition and ownership of the land in dispute by Opeagbe was by way of first settlement in accordance with the customary law and usage of the people. Opeagbe settled on the land in dispute until about 150 years ago when he granted the land to the plaintiffs’ ancestor, Oroye, another warrior under him by way of an absolute gift in accordance with customary law. Consequently, Oroye took physical possession of the land as soon as Opeagbe made the grant thereof to him and made maximum use thereof by way of erecting huts on the land, cultivating food crops such as yams and planting various economic trees to wit, orange, coffee, kola nuts and oil palm trees thereon. On Oroye’s death, his children and their descendants, that is to say, the plaintiffs, continued to use the land in dispute, inter alia, for farming. They also exercised various acts of ownership and possession over the same, including the prosecution and defending of actions in respect thereof. They tendered Exhibits F and J which are decisions concerning the cases in respect of which they obtained judgment against third parties over the land in dispute. The plaintiffs tendered Exhibit A. the evidence of Oladejo Adeleke Alesinloye, a member of the 1st – 5th defendants’ family in favour of the plaintiffs Oroye family in suit No. 1/165/77 in respect of the land in dispute. They also relied on a confirmation of a customary grant by the Opeagbe family by virtue of a deed made on the 8th day of November, 1972 and registered as No. 55 at page 55 in volume 1427 at the Registry of Deeds kept in the land Registry at Ibadan. This said deed. Exhibit C was executed as mere documentary evidence only on the grant to Oroye family by the Opeagbe family.

The 1st – 5th defendants, on the other hand, resisted the claim of the plaintiffs as owners of the land in dispute. It was their case that their ancestor, Bankole Alesinloye, another warrior and Balogun of Ibadan, about the year 1820 acquired a large piece or parcel of land of which the land in dispute formed a part by settlement under customary law and thereby became the absolute owner thereof. They claimed that the defendants’ ancestor, Bankole Alesinloye, and his family made grants of various portions of the land thus acquired to various families which included the plaintiffs’ Oroye family. The customary grant by the Alesinloye family to Dosunmu, the then head of the plaintiffs’ Oroye family, was made sometime between 1925 and 1929 during the reign of Foko. They denied that Oroye acquired the land in dispute from Opeagbe when, they claimed, did not own any parcel of land in the neighbourhood. They claimed that members of the Alesinloye family exercised acts of ownership on the land in dispute by farming thereon after its acquisition by settlement by the said Bankole Alesinloye.

At the conclusion of hearing, the learned trial Judge, Oloko. J after a careful review of the entire evidence found for the plaintiffs and pronounced thus:

“The sum total of the above findings is that the plaintiffs must succeed in the first leg of their claim, to wit Declaration of Title to a Statutory right of Occupancy over all that piece or parcel of land situate, lying and being at Igbo-Ori-Oke via Express Road. LL 9684 dated 22/4/85”

On the issue of trespass and perpetual injunction, the learned trial judge observed:-

“As for the general c1aim for trespass. I accept the evidence of the Plaintiffs, particularly the 4th PW that the defendants, excepting the 7th defendant, went on the land in dispute bulldozed it and destroyed both the economic crops and Oroye layout beacons………….

Plaintiffs are claiming N11,600.00 as costs of the 58 plots of the layout destroyed by the defendants. This is borne out by Exhibit L and L1. I accept their evidence. I also award N400.00 as general damages for trespass.

I am satisfied from the totality of the evidence adduced in this case that an order for perpetual injunction should be made against the defendants and/or their agents”.

He then decreed in favour of the plaintiffs against the defendants as follows:-

“In sum, the judgment of the court will be as follows:

(a) Declaration of Title to a Statutory Right of occupancy over all that piece or parcel of land situated lying and being at Igbo-Ori-Oke via Express road, Ibadan shown on the survey plan No. LL9684 dated 22/4/85.

(b) The sum of N12,000.00 (Twelve Thousand Naira) is awarded against the defendants being special and general damages for continuous acts of trespass committed and still being committed by the defendants on the land in dispute.

(c) An order or Perpetual injunction restraining the defendants, their servants, agents, privies or any person claiming through or under them from committing further acts of trespass on the said land in dispute”.

Being dissatisfied with the said judgment, the defendants lodged an appeal against the same to the Court of Appeal, Ibadan Division which court in a unanimous decision on the 14th day of April, 1992 allowed the appeal, set aside the decision and orders of the trial court and dismissed the plaintiffs’ claims.

Two main grounds were relied upon by the court below for allowing the defendant appeal. The first ground revolved around Exhibit A which constituted a part of the evidence adduced by the plaintiffs in proof of their claim. It was the view of the court that Exhibit A was inadmissible in evidence and it consequently ordered that the same be expunged from the records. I think I ought to mention that one or two other issues were raised and canvassed by the parties with regard to certain aspects of the contents of Exhibit A in respect of which the court below accordingly relied upon. I will have cause in the course of this judgment to comment on these issues.

The second ground upon which the court below allowed the defendants’ appeal is that the plaintiffs’ failed to adduce evidence of how Opeagbe, the plaintiffs predecessor in title acquired ownership of the land in dispute to enable him to make a customary grant of the same to the plaintiffs. It is mainly on the foregoing two grounds that the court below dismissed the plaintiffs’ claims in their entirety.

Aggrieved by this decision of the Court of Appeal, the plaintiffs have now appealed to this court. I shall hereinafter refer to the plaintiffs and the defendants in this judgment as the appellants and the respondents respectively.

Five grounds of appeal were filed by appellants against this decision of the Court of Appeal. It is unnecessary to reproduce them in this judgment. It suffices to state that the parties pursuant to the rules of this court filed and exchanged their written briefs of argument.

The five issues distilled from the appellants’ grounds of appeal set out on their behalf for the determination of this court are as follows:-

“1. Was the court below not wrong in law when it held that Exhibit ‘A’ was inadmissible as evidence against the proprietary interest of Ladejo Adeleke and or the Alesinloye family and that the Alesinloye family was not estopped by conduct or by standing by

2. Whether the court below was not wrong in law when after expunging Exhibit “A” from the Record, it held that the appellants did not discharge the burden of proving grant of the land in dispute to their ancestor without applying the principle in Ajayi v. Fisher (1956) 1 FSC 99; (1956) SCNLR 279 and without properly or sufficiently considering the other relevant evidence and or calling on the counsel to address it.
3. Whether the Court below was not wrong in law when a declared a material part of the evidence given by PW4 as “hearsay” and thereafter held that Ladejo Adeleke Alesinloye unilaterally put himself up as a witness to assist his kith and kin, the Oroye family.
4. Whether the Court below did not misconstrue the appellants’ case and thereby misdirected itself in law and caused a miscarriage of justice when it held that for the appellants to prove a grant of the land in dispute to their ancestor, it was necessary for them to call members of Opeagbe family to adduce evidence as to how Opeagbe divested the original owners of title to the land in dispute.
5. Whether after expunging Exhibit ‘A’ from the Record, the Court below did not fail in advert its mind to the other material evidence on Record before holding that the Appellants did not prove grant to the ancestor”.

The respondents for their part, submitted four issues in their brief of argument as arising in this appeal for determination. These issues are framed thus:-

“1. Whether the Court of Appeal was right in holding that there was no evidence as to Ladejo Adeleke’s source of authority to give evidence for Oroye family in suit No. 1/165/77.

2. Whether the Court of appeal was right in holding that Exhibit A was inadmissible and consequently expunged it from the record.
3. Whether after expunging Exhibit “A” from the Record, the Court of Appeal did advert its mind to the other material evidence in the case before holding that the appellants did not prove a grant to their ancestors, and whether there were pieces of evidence left which should be enough to prove grant.
4. Whether the Court of Appeal misconstrued the case of the appellants because the court said “………it is therefore necessary for them to adduce evidence of how Opeagbe divested the original owners of the land of title and title came to be vested in them……”

I have closely examined the two set of issues identified by Learned Counsel in their respective briefs of argument. In my view, the question raised by the appellants not only covers those formulated by the respondents, they appear to me enough for the determination of this appeal. I will accordingly adopt the set of issues identified by the appellants for my consideration of this appeal.

At the oral hearing of the appeal, both learned counsel for the parties adopted their respective briefs of argument and proffered additional submissions in amplification thereof.

The main thrust of the submission of Alhaji Isola Gbenla on behalf of the appellant with regard to the document, Exhibit A, is that its contents in parties constitute admissions by a witness, now dead, against the proprietary interest of the respondent under sections 19, 20(1) 23 and 26 of the Evidence Act. He contended that the document having satisfied the conditions set out under section 33(c) of the Evidence Act was therefore properly admitted in evidence. In this regard, learned counsel called in aid the decision of this court in Anyaegbu Ojiegbe v. Gabriel Okworanyia & Ors. (1962) 1 All NLR (Pt.4) 605 at 609 – 610, (1962) 2 SCNLR 358. He stressed that it is not in dispute that Exhibit A, the evidence of the late Ladejo Adeleke Alesinloye in suit No. 1/165/77 between the appellants and one Alhaji A.S. Adebolu, was in respect of the land now in dispute. It is, the said Ladejo Adeleke Alesinloye, admitted that the land in dispute belonged to the appellants’ Oroye family. He further admitted that the evidence of traditional history pleaded and testified to by the appellants to the effect that the land in dispute originally belonged to Opeagbe who in accordance with customary law granted the same to his war lieutenant, Oroye, is well founded. He also admitted that he testified in Exhibit A as the representative of this Alesinloye family. On the observation by the Court of Appeal that Ladejo had dual interest or loyalty to misrepresent matters learned counsel described this as totally misconceived and unfounded as this material fact was not pleaded by the respondents but was merely suggested by learned counsel in his final address before the court. He submitted that no legal evidence was led before the trial court to establish that Ladejo is related to Oroye family or that he had proprietary interest in the Oroye family landed property. Alternatively, he stressed that the mere fact that an individual is related to member of family cannot ipso facto establish the individual’s membership of such family. Learned counsel family contended that the court below having raised the issue of the admissibility of Exhibit A suo motu ought to have given both counsel the opportunity to be heard on the issue. This is what the court below failed to do.

On issue 2 and 5, it was contended that apart from the admission in Exhibit A, there was categorical and unequivocal oral evidence by the appellants to the effect that the land in dispute was originally acquired by first settlement by Opeagbe some 200 years ago but that the subsequently made a grant of the same under customary law to Oroye, the appellants’ predecessor in title. This evidence was fully considered and accepted by the trial court as reliable. Learned counsel then submitted that the records, was in further error when it failed to consider the appellants’ copious oral evidence in respect of their title to the land in dispute. He stressed that had the court below fully and properly considered the entire case of the appellants, it would have come to the conclusion that there was simple evidence that Opeagbe acquired the land in dispute by first settlement and that he took effective possession of the same by farming thereon before he granted it to Oroye.

Turning to issues 3 and 4 learned counsel contended that the court below was in error when it described the evidence of PW4 Alhaji Lasisi Olasupo Alli, the appellants’ principal witness, on how the land in dispute was originally acquired by first settlement as hearsay. He submitted that a witness once sworn to give evidence, is not barred from testifying to any relevant facts within his knowledge whether such evidence relates to traditional history or otherwise. He contended that the court below was therefore in error when it held that PW4 was incompetent to testify on the acquisition of the land in dispute by Opeagbe and its subsequent grant to Oroye. He reminded the court that on the evidence, both Opeagbe and Oroye were great warriors in Ibadan who fought side by side and made joint conquests. Both families having enjoyed common entity as warlords, with Oroye serving under Opeagbe and having carried out their war exploits in collaboration with each other, it would not be a matter of surprise that the traditional history concerning the acquisition of the land in dispute by Opeagbe was within the knowledge of members of the Oroye family. Learned counsel contended that what the law requires a party so do is to call evidence in proof of his case and not to call a particular witness if he can prove his case otherwise. In his view, the appellants on the evidence led and accepted by the trial court, fully discharged the onus of proof on them in proof of their title to the land without necessarily calling on members of the Opeagbe family to testify. He finally submitted that the court below discharged the findings and conclusions of the trial court without any justification and without any reference to the pleadings and the evidence. Learned counsel urged this court to resolve the issues under consideration in favour of the appellants, allow the appeal, reverse the decision of the court below and restore the judgment of the trial court.

Learned counsel for the respondents Alhaji R.A. Sarumi argued with regard to issue 1 which deals with the admissibility of Exhibit A that the document did not comply with the provisions of section 33(c) of the Evidence Act. He adopted the reasoning of the court below to the effect that Exhibit A was evidence given by a witness in a previous trial and may only be used in a subsequent trial to impeach the credit of the maker if he said something different from what he had earlier deposed to. He concluded by stating that Oladejo Adeleke, the maker, was not a witness in the present case and that Exhibit A might never to have been admitted in the present proceedings.

On issues 2, 3, 4 and 5 the respondents submitted that on the strength of the pleadings, it was incumbent on the appellants to call evidence to establish the title of their grantors to the piece of land in dispute. It was argued that the appellants’ acquisition of the land through a grant from Opeagbe cannot be sustained unless they can show that Opeagbe had good or valid title thereto. Learned counsel for the respondents then submitted that the appellants neither pleaded nor led evidence to establish how their predecessors acquire the land in dispute. It was further contended that the appellants should have called the descendants of Opeagbe or co-warrior of Opeagbe or other war lieutenants of Opeagbe who knew or had heard of such settlement to give evidence to establish how the latter acquire the land in dispute. This they failed to do. He drew the attention of the court to the decision of this court in Ezewani v. Obi Onwordi and Ors. (1986) SC 402 at 450; (1986) 4 NWLR (Pt.33) 27 and stressed that findings in other cases, such as Exhibit A & B, should not be exported from those cases into another case to supplement any deficiency in the second case. In his view, the appellants failed to prove the grant of the land in dispute to them. He further argued that the court below was right when it held that there was no evidence on how Opeagbe acquired title to the land in dispute. He considered the evidence of PW4, Ladejo Adeleke Alesinloye on the issue of the acquisition of the land in dispute by Opeagbe as hearsay. He urged the court to dismiss the appeal.

It seems to me convenient to consider issue 2, 3, 4 and 5 together. Basically they relates to whether or not the court below was right in law when it held that title to the land in dispute was established by the appellants. It gave two main reasons for arriving at this conclusion. The first is that the appellants were unable to establish the title of the Opeagbe family, their predecessors in title, to the land in dispute. The second is that the appellant also failed to prove the grant to Oroye of the land in dispute by the great warrior Opeagbe.

In support of their root title to the land in dispute, the appellants pleaded in paragraphs 3 – 8 of their Statement of Claim as follows:-

“3. The parcel of land claimed by the plaintiffs situate at Igbo-Ori-Oke or Ajawele and about 5 kilometeres to Mapo Hall, Ibadan, is verged “RED” while the area trespass upon and cause of dispute is verged “Yellow” on Survey plan No. LL.9684 of 22nd April, 1985 with this statement of claim.

4. The said area of land claimed by the plaintiffs is bounded by the parcels of land belonging to Aranimogun Atagba Akintola, Abidigugu and Akano families and by Oniponrin Stream flanked by Alesinloye family land.
5. The plaintiffs over that the said land was originally acquired by settlement according to Native Law and Custom by Opeagbe a Warrior in Ibadan over 200 years ago.
6. The parcel of land claimed and disputed belongs to the entire members of Oroye family made up about 300 members both males and females.
7. The plaintiff’s ancestor was Oroye, a warrior under Opeagbe who granted the entire land claimed and in dispute to the said Oroye as an absolute gift according to Native Law and Custom about 150 years ago.
8. The said Oroye took possession of the land and continued to cultivate it. Planning kola, oil palms, yam, planting without let or hindrance while he also erected two huts on the land.”

The respondents, for their part, joined issues with the appellants on the question of their root of title as pleaded above. They pleaded thus:-

“4. The defendants aver that Bankole Aleshinloye, a warrior and Balogun of Ibadan about 1820, the ancestor of the defendants, of Isale-Ijebu, Ibadan, acquired the land by settlement on the large piece of or parcel of land stretching from Ile-Tuntun, that is Oloro Ajawele, to Adaramagbo on the right and left of Olojuoro Road, under the native law and custom about 180 years ago and thereby became the absolute owner thereof.

5. The said Aleshinloye farmed on the land and had a village on his land at a spot close to Owode market, and also did all other acts of ownership on his land in his life time.
6. On the death of Bankole Aleshinloye, his land became Aleshinloye family land.
7. The said Bankole Aleshinloye and his family successively made absolute grants of portions of the land to others who include, Balarojowu, Abidikugu, Akano, Oroye family, and others.
8. The said Aleshinloye family land included the land now verged ‘Red’ on the defendants’ plan, the area of express Road verged ‘purple’ on the plaintiffs’ plan, and the built up area on the plaintiffs, plan, thereon verged ‘Green’, and part of the land sold to S.B. Adewunmi and the land stretching therefrom up to Adaramagbo on Olojuoro road.
9. The defendants aver that during the reign of Foko (1925 – 1929), Dosunmu (Babalowo), the then Mogaji of Oroye family begged for the grant of area marked ‘Purple’ and ‘Green’ on the plaintiffs’ plan for himself and Oroye family for farming purpose from Okunola Abasi (the Mogaji Aleshinloye family) through Aminu, the 2nd defendant. Tafa Owoade, and Mogaji Akano.
10. The defendants further state that it was in the reign of Foko that the area marked ‘Purple’ and ‘Green’ on the plaintiffs’ plan was granted to Dosunmu for their family and not that any Oroye acquired any land in that area by grant from Opeagbe.
11. The defendant’s further state that Opeagbe did not acquired land in between Aleshinloye’s land, Opeagbe land is beyond Akintola’s land shown on the plaintiffs’ plan”.

It is thus crystal clear that the respondent did not accept the appellants’ version of their root of title.

It is not in doubt that once a party pleads and traces his root of title in an action for a declaration of title to land action to a particular person of source and this averment, as in the present case, is challenged, the party, to succeed, as a plaintiff in the suit must not only establish his title to such land, he must also satisfy the court as to the title of the person or source from whom he claims. He cannot totally ignore the validity of his grantor’s title where this has been challenged and concentrate only on his own title to such land as he would not have acquired a valid title to land if in fact his grantor at all material time has no title thereto. See Mogaji and others v. Cadbury Fry (Export) Ltd. (1985) 2 NWLR (Pt.7) 393. Accordingly, the appellants to succeed in the present case, must not only establish their title to land in dispute, they must go further to satisfy the court on the validity of Opeagbe’s title, that is to say, on how Opeagbe derived his title to land in dispute.

Now, the law is well settled that there exist five recognized methods by which ownership land may be established. These, briefly, comprise as follows:-

(i) Proof by traditional history or traditional evidence

(ii) Proof by grant or the production of document of title.

(iii) Proof by acts of ownership extending over sufficient length of time, numerous and positive enough as to warrant the inference that the persons exercising such acts are the true owners of the land.

(iv) Proof by acts of long possession; and

(v) Proof by possession of connected or adjacent and in circumstance rendering it probable that the owner of such land would to addition be the owner of the land in dispute.

See Idundun v. Okumagba (1976) 9-10 SC 277, at 246 – 250, Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; and Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386 etc. From the state of the pleadings and the evidence before the court it is quite clear that the appellants relied, firstly, on traditional history with regard to the acquisition of the land in dispute by Opeagbe and, secondly, on subsequent customary grant of the land by Opeagbe to their ancestor Oroye. The appellants’ case, as pleaded and testified to before the trial court, is that Opeagbe a great warrior in Ibadan acquired the land in dispute by first settlement some 200 years ago and thus became the first owner thereof under customary law. He settled and remained in effective possession of the land until some 150 years ago when he made an absolute grant of the same under customary law to his co-warrior and war lieutenant, Oroye, who at all material time served under him. Oroye, and after him, his descendants, have remained in effective occupation and possession of the land, PW4, Alhaji Lasisi Olasupo Alli, a star witness of the appellants in this case testified in part as follows:-

“The land in dispute is owned by Oroye family, Opeagbe family was the original owner of the land about 200 years ago. Opeagbe was a great warrior in Ibadan and he settled on it over 200 years ago. Oroye was another great warrior in Ibadan but he served under Opeagbe. About 150 years ago the land in dispute was granted to Oroye by Opeagbe. Opeagbe put Oroye on the land and the latter took possession.

Oroye was cultivating the land, planting kola nuts, palm-trees, yams, etc. Oroye also erected two huts on the land. He was never disturbed on the land in dispute. Oroye is dead, he died over 100 years ago, he was survived by his children. They are Alh. Gbadamosi, Akande, Ladele, Dosumu and others. Oroye’s children also inherited the land and continued cultivation thereon planting cocoa, pineapples, orange, kolanut trees, coffee etc.”

The respondent resisted the appellants’ claim and testified as to their version of traditional history in respect of the land in dispute. Their version is that their ancestor. Bankole Alesinloye, another warrior and Balogun of Ibadan around the year 1820 acquired by first settlement, at large piece of parcel of land of which the land in dispute forms a part. Their ancestor made grants of portions of this land to various persons inclusive of the Oroye family. It is apparent from the case as presented by the parties that there is a definite conflict in the traditional evidence of the parties.

The first point I desire to make is that evidence of traditional history, where this is found to the cogent and accepted by the court, can support a claim for declaration of title to land. See F.M. Alade v. Lawrence Awo (1975) 4 SC 215 at 228 Olupebu of Ijebu v. Oso (1972) 5 SC 143 at 151, Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188. Idundun v. Okumagba (1976) 9 – 10 SC 228. In the present claim, however, it is manifest that this is a case of a conflict in the traditional history of the parties. The law is settled that where there is a conflict in traditional history, the demeanor of witnesses if of little guide to the truth of the matter as it must be recognized that in the course of transmission from generation to generation of the traditional history mistakes may occur without any dishonest motive whatever. In such a case, the traditional history is to be tested by recent facts established by evidence with a view to determining which of the conflicting version is more probable. See Kojo v. Bonsie (1957) 1 WLR 1223 at 1227.

In the second place, the law is equally well settled that it is not sufficient for a party who relies for proof of title to land on traditional evidence, as in the present case, to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial. Such a party is bound to plead such facts as-

(1) Who founded the land

(2) How the land was founded and

(3) Particulars of the intervening owner through whom he claims.

See Akinloye v. Eyiyola (1968) NMLR 92; Olujinle v. Adeogbo (1988) 2 NWLR (Pt.75) 238; Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417; Anyanwu v. Mbara (1992) 5 NWLR (Pty.242) 386 at 399. The onus in the present case is therefore on the appellants not only to establish the grant from Opeagbe to them but also to satisfy the court on their grantor’s title to the land in dispute.

On Opeagbe’s title to land in dispute, the appellants pleaded and testified to the facts that it was the said Opeagbe who first founded or acquired the land, that he acquired by first settlement about 200 years ago, that he remained in exclusive possession thereof until some 150 years ago when he made a grant of the same to Oroye, his war lieutenant, with whom he had always jointly fought together and that the said Oroye, and after him his descendants, that is to say, the appellants, have remained the owners in possession of the land until this day.

The appellants in their effort to satisfy the trial court on Opeagbe’s acquisition of or title to the land in dispute under customary law led evidence on the aforementioned conditions pertaining to proof of ownership of land by traditional evidence. Evidence was led that it was Opeagbe who founded the land, that he founded it by first settlement and that it was Opeagbe himself who made a grant thereof to Oroye, the appellants’ ancestor, it is clear to me that the appellants not only pleaded but adduced sufficient evidence to prove Opeagbe’s title to the land in dispute, a title which he acquired under customary law by way of first occupancy thereof.

The appellants also led oral evidence of the customary grant of the land to their ancestor, Oroye. Both evidence of Opeagbe’s title and his grant of the land were testified to by PW4, a witness whose evidence the trial court accepted as reliable. Although the respondents submitted that there was no evidence of any acts of possession or ownership by the appellants on the land, this is neither borne out from the pleadings nor from the evidence of the appellants. At all events the appellants to prove their title to the land in dispute did not rely on acts of long possession and/or ownership of which by themselves also constitute another way by which title to land may be proved. See Idundun v. Okumagba (supra). All the law requires a plaintiff who relies on grant or original settlement to do in proof of his title to land is simply to establish such grant of first settlement to the satisfaction of the trial court and this he can do whether or not this is accompanied by the exercise of dominion over the land in dispute, an exercise which on its own may be sufficient to establish title to land. See Chief O. Odofin v. Ayoola (1984) 22 SC 72 at 105 and Kuma v. Kuma 5 WACA 4.

I have already emphasized that the appellants led enough evidence of Opeagbe’s possession of land and settlement on the land in dispute on his acquisition thereof. Copious evidence was also led by them on their numerous and various acts of possession on the land right from the time Opeagbe granted it to them. More significantly, is their testimony with regard to established recent facts which on the state of the law was decisive in the determination of which of the conflicting traditional evidence of the parties is credible.

“In 1954, my family instructed Chief Laniyan (deceased) to carry out the survey of the entire land belonging to Oroye family. He carried out his assignment in the presence of our boundary-men. He produced PLAN NO. L/LA.157 attached to Exhibit ‘C’. Nobody challenged our family throughout the survey exercise.

In 1972, the family decided to raise a loan from the bank using the family land which is now in dispute as Mortgage. We got Exhibit ‘C’ from Opeagbe family in response to the request from the bank. In 1975, the express road was being constructed and Government acquired part of the land because the express road passed through it. Our crops were enumerated. 2nd plaintiff represented the family then. A certificate of enumeration was issued CROP ENUMERATION CERTIFICATE – EXHIBIT ‘E’.

In 1976, one Ilesanmi entered the land in dispute and started to bulldozed our crop. We challenged him and reported him to the police at Idiare. Ilesanmi claims that he bought the land from Opeagbe family. As a result of his recalcitrant attitude we put Ilesanmi to court in suitNo.1/307/76. We got judgment against Ilesanmi. This is the certified true copy of the judgment. CERTIFIED TRUE COPY OF THE JUDGMENT IN SUIT NO. 1/307/76 delivered on 20/6/80 by Yinka Ayoola, J. – Exhibit “F”. I draw the plan of the case. This is the plan. No. LL8115 dated 1/8/77 – Exhibit “G”.

In 1977, I got instructions from the family to layout the land in dispute. Oroye family comprises about 300 people both male and female. I carried out the layout and made a plan. Here is the plan LAYOUT PLAN OF THE LAND IN DISPUTE, PLAN ON. 12 8257 dated 31/10/77 – Exhibit “H”.

While I was preparing the plan in respect of Suit 1/307/76 one Adebolu now deceased saw me on the land, challenged me and sued me for trespass on this same land in dispute. He further disclosed that Akano family sold the land to him.

The Suit No. 1/165/77. I defend the action on behalf of Oroye family. We obtained judgment against Adebolu. This is the certified true copy of the judgment.

CERTIFIED TRUE COPY OF THE JUDGMENT IN SUIT NO. 1/165/77 delivered on 20/11/78 by Lande, J. Exhibit ‘J’.

I prepared a litigation plan for suit 1/165/77. Here is the plan. PLAN NO. L1. 8284 dated 13/10/77 – Exhibit “K”.

I know one Ladejo Adeleke Alesinloye. During the pending of suit 1/165/77 my family approached Alesinloye family to come and give evidence as our boundary man. Ladejo Adeleke was instructed by Alesinloye to come and give the evidence. He came to give evidence.

COURT: Witness confirmed that Exhibit “A” is the certified true copy of the evidence given by Ladejo Alesinloye”.

I need stress that the evidence of the appellants and, indeed, the case presented by them were thoroughly considered and fully accepted by the trial court. Said the learned trial judge:-

“Apart from the evidence of the plaintiffs, which I accept, coupled with the evidence of some of the witnesses of the defendants that Ladejo Adeleke used to represent the defendants in the laid matters in court, the reasonable inference one can draw from the role of Ladejo Adeleke as shown in Exhibit “A” is that Alesinloye family was only reciprocating the good gesture shown by Oroye family in the ‘1984’ case above. In sum, I hold the Ladejo Adeleke Alesinloye was representing the Alesinloye family in the evidence he gave in suit No. 1/165/77 – Exhibit ‘J’ as shown in Exhibit ‘A’”.

On the appellant’s claim, in respect of grant of the land in dispute to the by Opeagbe under customary law as against the respondents, claim of ownership of the said land and grant of part thereof by their ancestor, Alesinloye, to the appellants, the learned trial judge found thus:-

“Let me state at this juncture that I accept and prefer, the evidence of grant given by the plaintiffs, particularly the evidence of the 4th P.W. to the adduced by the defendants. I refer the evidence of the defendants relating to the grant of the land in dispute by Alesinloye family to the plaintiffs. It is settled law that where a party relies on and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial court.

I hold that the plaintiffs have proved their grant of the land in dispute that is grant from Opeagbe family to the satisfaction of the court. Even the subsequent events after the grant as claimed by the defendants do not support their case.” (Italics mine).

Turning to the respondents’ alleged claim that they were in possession of the land in dispute, the learned trial judge dismissed the same as incorrect and unsubstantiated. He said:-

“I reject in its entirety any evidence by the 1st – 5th defendants to create the impression that at certain time or the other, some people carried out any form of operation, be it in the form of extracting gravel or processing palm oil or garri on the land in dispute.”

He then concluded:-

The sum total of the above findings is that the plaintiff must succeed in the first leg of their claim; to wit:

Declaration of Title to a Statutory right of Occupancy over all that piece or parcel of land situate lying and being at Igbo-Ori-Oke via Express Road, Ibadan and as shown on Survey Plan No. LL. 9684 dated 22/4/85″.

It is on the foregoing findings of the trial court that the learned trial judge made a declaration of title to a statutory right of occupancy over the land in dispute in favour of the appellants.

The Court of Appeal in allowing the appeal by the respondents faulted this decision of the learned trial court on three main grounds. The first ground was that the appellants failed to plead or give evidence of the acquisition of the land in dispute by their grantor. Said the court below per the leading judgment of Salami, J.C.A. with which Ogwuegbu, J.C.A. as he then was, and MOHAMMED J.CA., concurred:-

“The parties having so joined issue the respondents had to call evidence to show how their grantor acquired the parcel of land. The respondents’ acquisition of the land through grant from Opeagbe cannot be sustained unless they can show that Opeagbe had good or valid title. It is, therefore, necessary for them to adduce evidence of how Opeagbe divested the original owners of the land of title and how title came to be vested in them. The respondents neither pleaded nor led evidence showing or establishing the acquisition by their predecessor’s grantor”.

With profound respect to the Court of Appeal, it is grossly incorrect to suggest that the appellants neither pleaded nor led evidence of the acquisition of the land in dispute by Opeagbe. This was clearly averred in paragraph 5 of the Statement of Claim reproduced earlier on in this judgment. Evidence in respect thereof was also led by the appellants in proof of the same averment. I think the court below was in definite error when it faulted the decision of the trial court on that ground.

The second ground upon which the court below allowed the respondents’ appeal was that no member of the Opeagbe family was called to testify on how the land was first acquired. The court stated thus:-

“The respondents neither pleaded nor led evidence showing or establishing the acquisition by their predecessor’s grantor. This evidence whether through conquest or deforestation of virgin land may probably be within the knowledge of members of Opeagbe’s family who were never called to testify”.

I think, with profound respect, that the Court of Appeal, in the first instance, would appear to have misconceived the appellants’ case before the trial court. The case for the appellants was never that their predecessor in title, Opeagbe, was granted the land in dispute by any body but that he acquired the same by settlement in accordance with customary law. The appellants did not, therefore, need to plead or lead evidence to establish any acquisition by their predecessor’s grantor in respect of the land in dispute as no such grantor as either alleged or existed.

In the second place, and again with respect, the court of Appeal would appear to be in error when it held that in the absence of evidence from members of the Opeagbe family, the appellants would be unable to establish the acquisition of the land in dispute by settlement by Opeagbe through whom they claimed. In this regard, it ought to be stressed that the requirement of law from a party to suit is to call relevant evidence in proof of his case and not that he is bound to call a particular witness if he can prove his case otherwise. See Chief Tawalia Bello v. Kassan (1969) N.S.C.C. 288.

It is not in dispute from the pleadings in the present case that the appellants relied on traditional history in proof of the title of their grantor to the land in dispute and the subsequent customary grant of the same by Opeagbe to Oroye, their ancestor. Section 45 of the Evidence Act provides as follows:-

“Where the title to or interest in family or communal land is in issue, oral evidence of family of communal tradition concerning such title or interest is relevant”.

It is thus clear that oral evidence of tradition or traditional history in respect of title or interest in family or communal land is relevant and therefore admissible in proof of title or interest to such land. This rule, although without foundation to English common law, has been described as a convenient and common sense rule under the prevailing circumstances of this country developed, no doubt, as a result of the practice of the courts in admitting such evidence. See Law and Practice Relating to Evidence in Nigeria, 1980 Edition, article 7.04 at page 102. Expounding on the admissibility of this class of evidence, the West African Court of Appeal in the Commissioner of Lands v. Kadiri Adagun (1937) 3 WACA 206 observed as follows:-

“It is the undoubted practice in this country to accept as admissible in cases as to title to family land evidence of the tradition of the family ownership. Literacy among the people of this country does not go back very far, and the oral tradition is generally the only evidence available as to ownership of land earlier that the memory of living witnesses. The weight to be given to traditional evidence is of course another matter, depending on how far it is supported by other evidence of living people of facts within their knowledge. These facts are generally regarded as the acid test of the truth of otherwise of the traditional story. In this case, there was evidence enough. If believed, to prove that this land in question has been for at any rate, seventy years in the undisputed possession or control of the Olorogun family as owners. That fact, if proved, supports the traditional evidence………… In these circumstances I see no reason to hold that the learned judge was wrong in accepting and believing that evidence.”

Attention must also be drawn to the fact that although evidence of traditional history, as clearly admissible in law as it is, the weight to be attached to it is quite a different matter. As this was put by de Comarmond, Ag C.J. Nigeria in Lajide Akuru v. Olubadan-in-Council 91954) 14 WACA 523.

“It need hardly be pointed out that the weight to be attached to traditional evidence is a matter of which is left to the experience and wisdom of the (trial) judge’s (word in bracket supplied).

Reverting now to the present case. It must be conceded that it cannot be out of place if a member of the Opeagbe family was called to testify on the traditional evidence in issue. This however, is by no means the only way of establishing such a historical fact. In my view, evidence of traditional history in land matters which is nothing short of evidence of a historical fact transmitted from generation to generation in respect of a family communal land may, in appropriate cases, be given by any witnesses who by virtue of their peculiar and special relationship and circumstances and, before them, their ancestors, with the land owning family or community, are in a position and knowledgeable enough to testify on the traditional evidence in question. Such witnesses may include these who by virtue of the intimate and age-long close association, interaction and/or relationship form time immemorial between their family or community and those of the land owners in issue are clearly knowledgeable and in as good a position, if not even better than the land owners, to give cogent and relevant traditional evidence in respect of ownership of such land. Speaking for myself, it would not matter who testifies to a traditional historical fact, so long as he is able adequately to satisfy the court on the credibility and reliability of his means of knowledge together with his suitability and qualification to testify on the tradition in issue. I find it difficult to accept the suggestion of the court below that evidence of tradition, to be acceptable or indeed, admissible, must only be given by members of the immediate family or community of the land owners. No authority in support of that proposition has been brought to my knowledge and I myself have been unable to find one. Speaking for myself, I cannot accept that proposition as well founded.

I should perhaps add that without doubt, evidence of tradition may be more easily established if it comes from members of the family or community concerned. This does not however mean that all evidence of traditional history must in all cases and as a matter of law be rejected or declared inadmissible unless they came from members of the land owning family or community. I think that traditional evidence, even where it does not emanate from the immediate members of the family or community concerned is clearly admissible in land matters under section 45 of the Evidence Act. The weight to be attached to it, however, is quite a different matter which, as rightly observed in the case of Lajide Akuru v. Olubadan-in-council, (supra) must be left to the experience and wisdom of the trial judge. The vital issue to be borne in mind at all times is that evidence of traditional history, particularly where there is a conflict of the same between the parties to a dispute is not assessed from the demeanour credibility of the witnesses. It must be tested by other evidence of recent facts established by evidence. See Kojo II v. Bonsie (Supra).

In fairness to learned counsel for the respondent, it does appear from the respondent’s brief of argument that he conceded it cannot be right to state as the court below did, that evidence of traditional history as to how the appellants’ grantor acquired the land in dispute must necessary come from members of the Opeagbe family to be admissible or acceptable. His position was made clear in paragraph 7.04 of the respondents’ brief of argument where it was stated as follow:-

“7.04 Opeagbe cannot compel a litigant to call a particular witness, but surely if Opeagbe had settled on that land before granting the land to Oroye. I submit that evidence ought to have been called from descendants of Opeagbe or co-warriors of Opeagbe or other war lieutenants of Opeaagbe who know or had heard about such settlement to give evidence.”

I agree entirely with the above submission of learned counsel and entertain no doubt that proof of the traditional history as to how Opeagbe first acquire the land in dispute may rightly come from the descendants of Opeagbe, from those of his co-warriors or from those of other war lieutenants who know and are in position to give satisfactory evidence to that effect.

In the present case it is not in dispute that the appellants are the descendants of Oroye who at all material was co-warrior and lieutenant of the said Opeagbe during the latter’s exploits. Both warriors, Opeagbe and Oroye, at all material times fought together over the ages in their joint exploits. In my view, the descendants of Oroye, that is to say, the appellants, are in as good a position as those of Opeagbe to give evidence of traditional history on the issue of the acquisition of the land by first settlement by Opeagbe. I think the trial court was right in accepting the traditional evidence of the appellants on the point, particularly when this evidence was hardly seriously challenged under cross-examination. This traditional evidence, subjected to the prescribed acid test, was found to be fully consistent with the recent facts established by evidence before the trial court. These recent facts include evidence which was accepted by the trial court that the land in dispute had for a period of over 150 years from the time Opeagbe granted the same to Oroye been in the undisputed possession and control of the appellants as owners thereof. This fact along leads full support of the traditional evidence in issue. But there are additionally Exhibits F and J which were admissible in evidence in proof of the appellants’ acts of possession in respect of the land in dispute. They, too, copiously support the traditional evidence in issue. In the face of all the above circumstances, I can find no reason to fault the trial court in accepting the appellants’ evidence of traditional history as established.

It is now recognized that the fact of first settlement upon land seems to be one of the oldest methods of acquiring title to land. As I have already observed if traditional evidence, and this includes evidence of first settlement, is satisfactorily placed before the court and is accepted, title to the land can be declared on such evidence of tradition alone. See Chief Odofin v. Ayoola (1984) 11 SC 72 at 144 where this court per Oputa, J.S.C. put the matter as follows:-

“First settlement seems to be the oldest methods of acquiring title to land. If the traditional evidence of such first settlement is accepted, title can be declared purely on such traditional evidence.”

See too stool of Abinabina v. Chief Kojo Enyimadu 12 WACA 171 at 174 (P.C.), Oluyole v. Olofa (1968) NMLR 162 etc. and I ask myself what the original acquisition of land by settlement under customary law really means This, in my view, means no more than first occupation or original settlement and land for whatever purpose. In the present case, the learned trial judge was satisfied with and accepted the appellant’s evidence on acquisition by first settlement on the land in dispute by Opeagbe. He was also satisfied that Opeagbe on the evidence before him, granted the same land under customary law to Oroye.

I think the learned trial judge was entitled on these findings which are fully supported by the evidence before the court to make an award to title to land in dispute in favour of the appellants. It is an elementary principle of law that an appellate court will not ordinarily interfere with the findings of fact made by the trial court which are supported by evidence except in circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence or the findings of fact are perverse in the sense that they do not flow from the evidence accepted by it. See Woluchem v. Guidi (1981) 5 SC 291 at 295 and 326; Okpiri v. Jonah (1961) 1 All N.L.R. 102 at 104, (1961) 1 SCNLR 174 etc. None of the circumstances enumerated above exists in the present case to warrant any interference by the Court of Appeal of the said findings of the trial court. I think the court below, with respect, was in grave error, when it disturbed these findings of the trial court on basis which, in my view, are entirely groundless.

Turning now to issue I which deals with the admissibility of the document, Exhibit A and upon which the court below heavily relied in allowing the respondents’ appeal, it will be necessary to determine whether that issue was competently before that court. In this regard, 12 grounds of appeal were filed by the respondents, as appellants in that court, against the decision of the court below. The appellants, as respondents, in that court filed no cross-appeal.

The twelve complaints raised by the appellants before the court below in their grounds of appeal, without their particulars, are as follows:-

1. The learned trial Judge erred in law and on the facts in giving judgment for the plaintiffs for a Declaration for Statutory Right of Occupancy in respect of the land in dispute, when the plaintiffs failed to prove grant from Opeagbe, which as the source of their title.
2. The learned trial judge having agreed that the judgment in Exhibit ‘F’ and ‘J’ are res inter alios acta as far as Alesinloye family is concerned, erred in law in holding in this case, that:

(i) the original owner of the land in dispute was Opeagbe;

(ii) Opeagbe granted the land in dispute to Oroye, and

(iii) the Oroye family are in possession

3. The learned trial judge erred in law formulating wrong issue for himself to determine the case by saying, “who granted the land in dispute to the plaintiffs’ Oroye family Is it Opeagbe or Alesinloye family”
4. The learned trial judge erred in law in relying on the contents of Exhibits ‘A’ as proof of the facts stated therein, and using same as binding on Alesinloye family.
5. The learned trial judge erred in law in rejecting evidence of grant by Alesinloye family to Balarojowu and Abidikugu, when the plaintiffs did not join issue with the Defendants on the point and the evidence led in support thereof was uncontradicted;
6. The learned trial Judge erred in law and on the fact in rejecting the evidence led for the 1st to 5th Defendants that sometime ago, the 3rd DW. Rafatu Akinjobi, extracted gravel from the land in dispute, when the evidence and probabilities in the case was to that effect.
7. The learned trial Judge erred in law and on the facts holding that the contents of Exhibits ‘N’ support the contention that Alesinloye family did not know the land in dispute or, in the alternative, the extent of their land in that area;
8. The learned trial Judge erred in law and on facts in believing the plaintiffs that they made a layout of the land in dispute in 1977 and incurred expenses of N11,600.00 and therefore awarded N11,600.00 special damages against the defendants, when on the evidence in the case, the claim ought to be rejected.
9. The learned trial Judge erred in law and on the facts in holding that the Defendant on their plan Exhibit ‘Q’, did not know the extent of the land of their alleged grantee. Akano family, and that there is no land between Oroye family land that is, the land in dispute and Akano family land;
10. The learned trial Judge erred in law in failing to consider the case of the land defence adequately in that this judge merely highlighted the weaknesses in the defence case, while he did not consider the weaknesses in the plaintiffs’ case.
11. The judgment is against the weight of evidence.
12. The Court erred in law in awarding N3,000.00 costs which in the circumstances of this case is excessive and against the Defendants.

A close study of the above grounds of appeal discloses in the clearest possible terms that not one of them raised any question concerning the admissibility of the document, Exhibit ‘A’. The only ground that dealt with Exhibit A is ground 4 which, however, did not question its admissibility in evidence but was merely concerned with the weight attached to its contents by the trial Court.

It is instructive to observe that the said respondents, as appellants in the Court below, raised 9 issues from their ground of appeal for the determination of the court below. These issues were formulated thus:-

“(i) Whether the issue formulated by the court was proper,

(ii) Whether the plaintiffs proved grant as pleaded notwithstanding the findings in Exhibits ‘F’ and ‘J’.

(iii) Whether the Alesinloye family were estopped by the contents of Exhibit ‘A’.

(iv) Whether the court could reject the evidence of grant by Alesinloye to Abidikugu and Balarojowu.

(v) Whether the trial court rejects the evidence of extraction of gravel on the land in dispute adduced for the Defendant.

(vi) Whether the contents of Exhibit ‘N’ support the contention that the defendant did not known the land in dispute or the extent of their land in the area.

(vii) Whether the court ought to have awarded N16,000.00 special damages N400 general damages and N3,000.00 costs in the circumstances of this case.

(viii) Whether the case of the defence was adequately considered and whether the case was against the weight of evidence.

It seems to me clear that not one of the above issues concerned the admissibility of Exhibit A in evidence. However, notwithstanding the fact that neither in the respondents grounds of appeal nor in the issues formatted by them before the court below did they question the admissibility of Exhibit A, the Court of Appeal devoted more than half of its judgment to a consideration of this issue. In the final result, the court declared the document inadmissible in evidence and accordingly expunged it from the records. With profound respect of the Court of Appeal, it was grossly in error to have adopted this course of procedure and as a result of which it was able to allow the respondents’ appeal before it.

This is because, in the first parties in court of pleadings that judgment must be confined to the issues raised by such parties. It is not competent for a court suo motu to make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before it. See Commissioner for works, Benue State v. Devcon Development Consultants Ltd. And another (1988) 3 NWLR (Pt.83) 407, Nigerian Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC 57, Adeniji and others v. Adeniji and others (1972) 1 All NLR (Pt.298). In particular, it should be plain to an appellate court that when an issue is not placed before it, it has no business whatsoever to deal with it. See too Florence Olusanya v. Olufemi Olusanya (1983)3 SC at 56 – 57, (1983) 1 SCNLR 134.

In the second place, an appellate court can only hear and decide on issues raised on the grounds of appeal filed before it and an issue not covered by any of the grounds of appeal is incompetent and will be struck out. See Management Enterprises v. Otusanya (1987) 2 NWLR (Pt.55) 179.

In the third place, it is wrong to found a decision of a court of law on any ground in respect of which it has neither received argument from or on behalf of the parties before it nor even raised by or for the parties or either of them. See Shitta Bay v. Federal Public Service Commission (1981) 1 SC 40, Saude v. Abdullahi (1989) 7 SCNJ 216, (1989) 4 NWLR (Pt.116) 387; Chief Ebba v. Chief Ogodo and another (1984) 4 SC 817 at 112, (1984) 1 SCNLR 372.

In the fourth place, even when a court raises a point suo motu, the parties must be given an opportunity to be heard on the point, particularly the party that may suffer a loss as a result of the point raised suo motu. See Odiase v. Agbo (1972) 1 All NLR (Pt.1) 170, Ajao v. Ashiru (1973) 11 sc 23, Atanda v. Lakanmi (1974) 3 SC 109, Adegoke v. Adibi (1992) 5 NWLR (Pt.242) 410 at 420.

In present case, the court of Appeal, quite wrongly, waded into the arena of the dispute between the parties and formulated in issue on the admissibility of Exhibit A an issue not raised by either of the parties, declared the document inadmissible in evidence and proceeded to expunge it from the records. Worse still is the fact that the said court below, again quite in error, raised the said issue notwithstanding the fact that it was covered by any of the grounds of appeal filed by the respondents, as appellants in that court, before it. Finally, although that court raised the said issue suo motu in its judgment mainly on the point, if failed to give the parties any opportunity whatsoever to be heard on the point so raised suo motu by it. It is plain to me that each and every one of the foregoing procedure adopted by the Court of Appeal in the determination of this appeal constituted serious errors of law which clearly occasioned a miscarriage of justice and cannot be allowed to stand. In my view, the issue as to the admissibility of Exhibit A upon which the court below heavily relied in allowing the appeal before it is incompetent and is hereby struck out.

There is next the question of whether the court below was right in law in that having expunged Exhibit A from the record of proceedings, it held without any sufficient consideration of other relevant and material oral evidence on record that the appellants did not prove the grant of the land in dispute by Opeagbe to their ancestor. I have earlier on in this judgment dealt with the oral evidence of the appellants in support of their claims apart from the documentary evidence. Exhibit A, I did come to the conclusion that upon such oral evidence alone, the trial court was entitled to enter judgment for the appellants and that it was an error in law for the Court of Appeal to interfere with the findings of the trial court from this oral evidence.

I think I ought to observe that although the court below attached the admissions against interest made by Ladejo Adeleke Adesinloye as a representative of the respondents in the said Exhibit A, I find it unnecessary in this judgment to wade into whether or not those admissions constituted legal evidence before the trial court. The same goes with the evidence and judgments in Exhibit F and J. This is because, apart from the admissions in Exhibit A and the findings in Exhibit F and J, there is ample oral evidence on record to sustain the judgment of the learned trial judge. In the circumstances, a consideration of such an issue may, to some extent, be regarded as academic.

The law is firmly settled that where a question before the court is entirely academic, speculative or hypothetical, the appellate court in accordance with the well established principle of this court must decline to decide the point. See Nkwoacha v. Governor of Anambra State (1984) 6 SC 362, (1984) 1 SCNLR 634; Governor of Kaduna State v. Dada (1986) 4 NWLR (Pt.38) 687, Richard Ezeanya & ors. v. Gabriel Okeke and others (1995) 4 NWLR (Pt. 388) 142, I will therefore decline to go into the questions of whether the admissions in Exhibit A constitute legal evidence and whether the findings in Exhibit F and J operate as estoppel against the respondents.

I should, however, add that even if I were able to find that the admissions in Exhibit A and the findings in Exhibit F and J ought to have been accepted by the trial court as additional reasons for granting the appellants’ claims, and I do not so hold, I still would have sustained the judgment of the trial court. This is because, it is not every mistake or error in a judgment that will result in an appeal being allowed. It is only where the error is substantial in that it has occasioned a miscarriage of justice that the appellant court is bound to interfere. See Onajobi v. Olanipekun (1985) 4 SC (Pt. 2) 156 at 163; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 at 282; Azuetonwa Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539 Abiodun Amaroti v. Madam Agbeke (1991) 6 SCNJ 64. In the same vein, wrongful admission of evidence shall not of itself constitute a ground for the reversal of a judgment where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. See Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616 at 630, Umeojiako v. Ezenamuo (1990) 2 NWLR (Pt. 126) 253 at 270, Monier Construction Co. Ld. V. Azubuike (1990) 3 NWLR (Pt. 126) 253 at 270, Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt. 136) 74 at 88 and Idundun v. Daniel Okumagba (1976) 9 – 10 SC 227.

Apart from the admission and findings in Exhibit A.F, and J, there is abundant oral evidence which the trial court accepted and which conclusively established the appellants’ claims. It cannot, therefore, be suggested that without the admissions and findings in question, the decision of the trial judge would have been otherwise, in my view, even if the acceptance of the admissions and findings in issue were to be wrongful, and I do not so hold, no miscarriage of justice was thereby occasioned as this could not be said to have reasonably affected the decision of the court.

There was finally the submission of learned counsel for the respondents that Exhibit F and J constituted res inter alios acta and that they could not, therefore, be sued to sustain the plea of estoppel. Without doubt, proceeding in a former action between one party to a present action and a stranger is generally inadmissible in evidence. See Owonyin v. Omotosho (1961) 1 All NLR (Pt.2) 304, (1961) 2 SCNLR 57. It should however be mentioned that previous judgments not inter partes, such as Exhibits F and J, are clearly admissible in evidence in proof of acts of possession which constituted a part of the appellants’ case in this action. See Alabia II v. Ohene Akyin 2 WACA 380. So, too, even where a proceedings is res inter alios acta, it can still operate as estoppel by conduct or standing by if there is cogent and accepted evidence, as in the present case, that the parties knew of the previous battle but stood by and failed to intervene. See Ndukwe Okafor and others v. Agwu Obiwo (1978) 10 SC 115. But as I have already observed, there are other ample evidence in this case upon which the appellants’ claims are easily sustainable I need not therefore dwell at length with the said Exhibit F and J.

On the question of the award of damages and perpetual injunction, there can be no doubt that there is ample evidence on record to sustain the judgment of the trial court on both issues. It is the finding of the learned trial judge that the appellants at all material times were the owners in possession of the land in dispute when the respondents unlawfully went on the land bulldozed it and destroyed both the appellants’ economic crops and beacons thereon. That court was also satisfied from the totality of the evidence adduced before it that an order for perpetual injunction should be made against the respondent, their agents and/or servants. I can find no reason on the part of the court below for interfering with the above findings if the trail court and the awards made thereupon and the same are hereby affirmed.

Two conclusions I therefore reach that all five issues formulated by the appellants in this appeal must be and are hereby resolved against the respondents. The judgment and orders of the court below are set aside and those of the trial court are hereby restored. There will be costs to the appellants against the respondents which I assess and fix at N10,000.00 in this court and |N1,000.00 in the court below.

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SC.96/1994