Alhaji Buhariawodi Mohammed V. Mallam Saliu Ajagbe (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, JSC.

This is an appeal against the judgment of the Court of Appeal Ilorin, delivered on 20th June, 2007 wherein it affirmed the decision of the appellate session of the Kwara State High Court. A brief fact of the case leading to this appeal will suffice. On 3rd July, 1996, the original plaintiffs, now respondent sued the original defendants, now appellants at the Upper Area Court I, Ilorin claiming the following reliefs: 1. A declaration that the Plaintiffs family in Ara Village, Kwara State Polytechnics Permanent site Area near Ilorin are the customary Holders/Owners and possessors of all the parcel of land stretching from Ara Village to Odogori, having an area of 133.267 hecters – part of which the defendant has trespassed upon particularly around Gaa Area Ile-Oganga River. 2. A declaration that the sale of many parcels of the said land and allocation of some other parts to people -whose names are yet to be known to the plaintiffs without the prior consent and approval of the plaintiffs is null and void. 3. General damages of five thousand naira (N5,000.00) against the defendant for trespass he committed on the aforesaid land by illegally selling parts of the lands and plucking the locust beans of the plaintiffs on parts of the aforesaid land. 4. An order of perpetual injunction against the defendant, restraining him, his servants, agents or privies or his heirs from entering any part of the aforesaid plaintiffs’ land. In reaction to the above claim, the appellants as defendants denied the claim of the plaintiffs and filed their counter claim on behalf of themselves and Ogbanga family as follows: 1. A declaration that defendant’s Ogbanga family are the owners of the piece or parcel of land situate and being at Ara Village bounded by Liman, Gaa Abubu, Odo Gori Ogangan, Ologbojo and Magaji Opoopo respectively. 2. The sum of N10,000.00 only being damages for trespass against the plaintiff in respect of the aforesaid piece or parcel of land. 3. An order of perpetual injunction restraining the plaintiff either by himself, his servants, agents, privies or any person or persons howsoever from trespassing or committing further act(s) of trespass on the defendants’ family land above described. After hearing evidence from both parties for and against their respective claims and counter-claims, the trial Upper Area Court held as follows on page 167 of the record of appeal: “In our view in the faces of acts of ownership exercised by both parties as highlighted above in the evidence of the parties in the open court and during the visit to the locus and especially as, pointed to us by the DW III which both parties agreed with him, we believe that each of the party have been exercising acts of ownership which spanned for a long time, we hold that both parties have established before the court act of ownership and user of the land in disputes, even though the story of the plaintiff on the traditional history is more convincing than that of the defendant. And also since the plaintiffs claimed and the defendants counterclaimed, the burden is squarely on both sides to adduce credible evidence in support of that title since the plaintiffs are claiming the whole Ara and the defendants are claiming part thereof, we hold that from the totality of the evidence before us, both parties have pieces or parcel of land at Ara. We therefore hold that from the totality of the evidence before us, and what was shown to us at the locus, and having regard to the findings in this case reached on the balance of probability, we believe that both parties in this case have land at Ara.” The trial court then held that both the claim and counter claim succeeded in part. The appellants herein, being dissatisfied with the decision of the Upper Area Court, filed an appeal to the appellate session of the High Court of Kwara State, Ilorin. The respondents herein, were also dissatisfied with the said judgment and also cross-appealed. In its judgment, the appellate High Court held inter alia as follows:- “It was because none of the parties disputed each other’s claim as shown by the boundaries that made the court to draw up a sketch map showing each party’s claim as limited by the accepted boundaries. We agree therefore that the court was justified in awarding each proved portion of the land to each party…….. and since the two parties agreed to the boundaries shown to the court during the visit to the lucus in quo, each party was entitled to a declaration in respect of the parcel falling within his own boundary. The respondents/counter claimants could not ask for a declaration in respect of the whole parcel of land. They are only entitled to the portion established by evidence and which falls within their own boundaries…” Again, the appellants were dissatisfied with the judgment of the High Court. They further appealed to the Court of Appeal which upheld the judgment of the two previous courts on issue of long possession but set aside their findings on traditional history. The respondents also cross appealed. The lower court also found no merit in the cross appeal. Both the appeal and the cross appeal were dismissed. Being dissatisfied with the judgment of the lower court, the appellants have further appealed to this court upon notice of appeal filed on 26th July, 2007. The said notice has three grounds of appeal out of which the appellants have distilled two issues for determination. The two issues are as follows: 1. Whether upon failure of the plaintiff who relied on traditional history to establish his title, reliance can be placed on act of possession. 2. Whether the court can grant a relief not claimed by both parties. The respondent has also decoded two issues for the determination of this appeal and are couched differently thus: 1. Whether it is just and right for the lower court to interfere with the concurrent findings of fact of the two courts below on the issue of prove of title by traditional history on the one hand and thereafter uphold another concurrent findings of fact of the same court as regards prove of title by acts of ownership and long possession on the other hand. 2. Whether in view of the claim and counter claim of the parties to the land in dispute, the concurrent decision of the three courts below in awarding same to each party to the extent of what was proved can be faulted on grounds of not being solicited for. As can be seen here, the two issues formulated by the appellants are in tandem with those of the respondent but couched differently. I shall determine this appeal based on these two issues. In his argument on the first issue, the learned counsel for the appellants, Tunde Olomu Esq., who also settled the brief, submitted that the lower court, having held that the traditional history of both parties failed to meet the required standard in law, reliance can no longer be placed on act of possession by either party to award their title to the whole land or any part thereof. He opined that where a party fails to establish his title by traditional history, reliance can no longer be placed on act of possession, citing the cases of Oyadare V. Keji (2005) 1SC 19 at 24 – 25, Balogun V. Akanji (1988) 1 NWLR (pt. 70) 301, Fasoro V. Beyioku (1988) 2 NWLR (pt. 76) 263 and Yusuf V. Adegoke & Anor (2007) 4 SC (pt. 1) 126 at 144. Learned counsel further submitted that having found that the respondent did not establish his root of title and that the finding of the High Court on same was perverse, the lower court ought to have reversed the judgment. He also argued that where a court of law states the correct principle of law but arrives at a wrong conclusion, such judgment should not be allowed to stand, referring to the case of Oyeyemi V. Irewolede Local Government (1993) 1 NWLR (pt. 270) 462 at 482. He then urged this court to resolve this issue in favour of the appellants. On issue two, learned counsel submitted that from the claim and counter claim of the parties, none of them asked for partitioning or sharing of the land but a declaration of title to the entire land. He submitted that the court is without power to grant a party what he did not claim, relying on the cases of International Messengers Nigeria Ltd V. Nwachukwu (2004) 6 SCNJ 56 at 71; Nigeria Airforce V. Shekete (2002) 12 SCNJ 35 at 52 – 53, Ekpenyong V. Nyong (1975) 2 SC 71 at 81 – 82 and Makanjuola V. Balogun (1989) 5 SC 82 at 93. It is a further contention of the appellants’ counsel that what the trial Upper Area Court did was partitioning of the land which was never asked for by any of the parties and that it was wrong for both the High Court and the Court of Appeal to affirm the judgment. It is his view that what the lower court did was to “ripen invalid title to a valid ownership title.” Let me pause here to say that the arguments and submission of appellants’ counsel on issue two which relates to the uncertainty of the boundaries of the land are not part of this issue. There is no ground of appeal which attacks the boundaries as stated by the trial court or at the court below. I shall therefore discountenance these arguments and apply only those arguments which relate to the issue at hand. In response to the first issue, the learned counsel for the respondent, D. Akin Akintoye II Esq., submitted that the finding and decision of the Court of Appeal that both the appellants and respondent were unable to prove their title based on traditional history has not been appealed against and therefore subsists. It is his contention that the cases of Oyadare V. Keji (supra), Balogun V. Akanji (supra) etc relied upon by the appellants are distinguishable in that those cases were decided based on the state of pleadings and evidence before the court whereas the present case was not prosecuted on pleadings. Relying on the case of Onwubufor V. Okoye (1996) 1 NWLR (pt. 422), he submitted that the court below was right to hold that although parties failed to prove their root of title by traditional history, and having shown and proved acts of possession, each party should keep that which he has proved. Learned counsel opined that what the lower court did was not a summersault but a decision that accords with reasoning and justice since no specific ways of proof were relied upon by the parties at the trial. He urged the court to resolve this issue in favour of the respondent. On the second issue, learned counsel submitted that even though both parties had argued before the lower courts that the decision to share the land between them was not sought for by them, the rationale and basis for upholding the concurrent findings of the two courts below have been found to be superior than the arguments put forward. It is his argument that the decision of all the courts below accord with common sense and justice. Learned counsel further submitted that it is an elementary principle of law that judgment can be given for a lesser sum than what was claimed if the lesser sum is only the amount of what is proved. That if this applies to claims of recovery in contract, that of title to land cannot be different. He urged that the judgment of the lower court on this basis is sound and should not be disturbed, particularly having regard to the fact that it is the third concurrent findings of fact and there is no basis for interference, citing the cases of Eche V. Nnamani (2000) FWLR (pt. 13) and Ali V. Alesinloye (2000) FWLR (pt. 15) 2010). He then urged the court to also resolve this issue in favour of the respondent. I shall now proceed to resolve the first issue. It simply states whether upon failure of the plaintiff who relied on traditional history to establish his title, reliance can be placed on act of possession. There are at least five ways of proving title to land in this country. These methods have been well documented in the case of D. O. Idundun & 6 Ors. V. Daniel Okumagba (1976) NSCC 445 at 453 – 454. The five methods are as follows: 1. Proof by traditional evidence; 2. Proof by production of documents of title duly authenticated, in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract. 3. Proof by acts of ownership in and over the land in dispute such as selling, leasing, making grant or farming on it or a portion thereof extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such proprietary acts are the true owners of the land. 4. Proof by acts of long possession and enjoyment of the land which prima facie may be evidence of ownership not only of the particular piece of land with reference to which such acts are done, but also of other land so situate and connected therewith by locality or similarity that the presumption under Section 46 and 146 of the Evidence Act applies and the inference can be drawn that what is true of one piece of land is likely to be true of the other piece of land. 5. Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See also Obineche V. Akusobi (2010) 12 NWLR (pt. 1208) 383, Alii V. Alesinloye (2000) 6 NWLR (pt. 660) 177, Adeosun V. Jibesin (2001) 11 NWLR (pt. 724) 290, Mogaji V. Cadbury Nig. Ltd (1985) 2 NWLR (pt. 7) 393, Ogunleye V. Oni (1990) 2 NWLR (pt. 135) 745, Okonkwo V. Okolo (1988) NWLR (pt. 79) 632. It must be noted that this matter emanated from an Upper Area Court where pleadings are not usually filed. Therefore, it may not be feasible to say which method of proving title to land the plaintiffs relied on and the defendants in their counter claim. But from the evidence led to prove the claim and the counter claim, the court below found as a fact, agreeing with the appellate High Court in the following words as contained on page 265 of the record of appeal: “It is therefore clearly evident that both the plaintiffs and the defendants relied on traditional history as well as acts of ownership and possession to establish their divergent claims of title to the disputed land” As at the time of writing this judgment, there is no appeal against the findings of the court below just quoted above. The effect is that both parties are bound by the said finding of the lower court. That is to say, that both the plaintiffs and defendants in their respective claim and counter-claim relied on both traditional history as well as acts of ownership and possession to establish their respective claim and counter claim. The said finding was deduced from the evidence adduced by both parties to support their divergent claims. There is nowhere it can be said that the respondents or even the appellants relied on traditional history only to prove their title to the disputed land. This is so because the matter was not fought on pleadings and there is no document to refer to in determining which of the five methods of proving title to land was pleaded by any of the parties. What the appellant is doing in this issue is akin to the proverbial pot calling a kettle black. This is so because the court below held in its judgment that none of the parties was able to prove their title by traditional history. On page 270 of the record, the lower court states: “Consequently, based on the above analysis, I am of the humble view that neither the plaintiffs nor the defendants were able to satisfactorily establish their root of title over Ara Village via traditional evidence, and I do so hold.” Again, the above finding has not been appealed against, at least there is no ground of appeal to that effect or any issue against it. Where a party has not appealed against a finding of the trial court or the Court of Appeal, he is deemed to have admitted same and as such he cannot be heard to question that finding on appeal. See Dabup V. Kolo (1993) 12 SCNJ I, Ijale V. Leventis & Co. Ltd (1959) SCNL; 255, (1959) 4 FSC108. The appellants had argued that having held that the traditional history of both parties failed to meet the required standard in law, reliance can no longer be placed on act of possession by either party to award them title to the whole land or any part thereof. He relied on the cases of Oyadare V. Keji (supra), Balogun V. Akanji (supra), Fasoro V. Beyioku (supra) and Yusuf V. Adegoke. As was pointed out by the learned counsel for the respondent, these cases were decided based on the state of the pleadings and evidence before the court to the effect that a party who has held himself out by his pleadings to rely on traditional history for his root of title, will either float or sink with it and where he sinks, he cannot turn around to rely on acts of possession or ownership. The cases relied upon by the appellants are clearly distinguishable from the instant case. First, there were no pleadings upon which the claim and counter claim were fought. Secondly, from the onset at the court of trial, the parties herein held themselves out to rely on both traditional history and acts of ownership and possession as found by both the trial Upper Area Court, the Appellate High Court and the Court of Appeal. Thus, the issue, as couched by the appellants is misconceived and does not fit into the facts of and findings in this case. Moreover, it is trite law that an appellate court would be slow to disturb or reverse findings of fact made by the trial court unless such findings are shown to be perverse having been based on inadmissible evidence or relevant and admissible evidence having been rejected which in either case occasioned a miscarriage of justice or that its findings were perverse. See Onwugbufor V. Okoye (1996) 1 NWLR (pt. 422) 252, Adimora V. Ajufo (1988) 3 NWLR (pt. 80) I, Okafor V. Idigo (1984) 1 SCNLR 481, Ebba V. Ogodo (1984) 1 SCNLR 372. In the instant appeal, the appellate session of the High Court had found that the plaintiffs’ evidence on traditional history was stronger than that of the defendants. It however agreed with the Upper Area Court that each claimant should keep the area of the land he was able to prove by acts of possession over a long period of time. However, the Court of Appeal set aside this particular finding of the appellate High Court and held that both parties were unable to prove their respective titles via traditional history. The lower court then agreed that each party should continue to own the areas they were able to prove by long possession. It was held by this court in Onwugbufor V. Okoye (supra) that a party who relies on acts of possession and ownership of the land in dispute as evidence and in proof of his title to land must, to succeed, establish that such acts not only extend over a sufficient length of time but also that they are numerous and positive enough to warrant the inference of exclusive ownership of such land. See Idundun V. Okumagba (supra). Both the appellants and the respondent were able to show by evidence, coupled with a visit to the locus by the trial Upper Area Court, that each owned and possessed the areas of the land which boundaries they showed to the trial court. I think the trial Upper Area Court was right to decide that each party should keep the part of the land they were able to prove as belonging to each of them. As there were no pleadings, it cannot be said that each relied on traditional history only, such that a failure to prove title on traditional history would be fatal to their case. I am of the view that having failed to prove their title via traditional history, and were only able to prove through ownership and possession, it was proper and just to make the order as the trial Upper Area Court made. After all, a party needs only one of the five methods to prove his title to any disputed land. Both the appellate session of the High Court and the Court of Appeal were correct to uphold the well reasoned judgment of the trial Upper Area Court. Accordingly, issue one, does not avail the appellants at all. I shall now consider the second issue. It states whether the court can grant a relief not claimed by both parties. As a general rule, no court is allowed to grant to a party a relief not sought or asked for. This court has stated in quite a number of decisions that a court ought not to play the role of Father Christmas which can go around granting to parties relief which they have not specifically asked for. See Nwanya V. Nwanya (1987) 3 NWLR (pt. 62) 697, Umenweluaku V. Ezeana (1972) 5 SC 343, Western Steel Works Ltd V. Iron & Steel Workers Union (1986) 3 NWLR (pt. 30) 617, Odofin V. Ogu (1992) 3 NWLR (pt. 229) 350. The appellants had argued that what the trial Upper Area Court, the High Court and the Court Appeal did was to make for the parties a case different from what was presented to the court. That even though the case was not tried on pleading but from the claim and counterclaim of the parties, no body claimed for part of the land in dispute or partitioning but the entire land. To assist me in resolving this issue, let me bring to the fore, the findings of the trial Upper Area Court in this matter. On page 167 of the record, the trial court said:- “In our view, in the faces of acts of ownership exercised by both parties as highlighted above in the evidence of the parties in the open court and during the visit to the locus and especially as pointed to us by DW III which both parties agreed with him, we believe that each party have been exercising act of ownership which spanned for a long time we hold that both parties have established before the court act of ownership and user of the land in dispute, even though the story of the plaintiffs on the traditional history is more convincing than that of the defendants. And also, since the plaintiffs claimed and the defendants counter-claimed, the burden is squarely on both sides to adduce credible evidence in support of that title…. and since the plaintiffs are claiming the whole Ara and the defendants are claiming part thereof, we hold that from the totality of the evidence before us, both parties have pieces or parcels of land at Ara.” The Court of Appeal, in agreeing with the appellate session of the High Court affirming the above finding of the trial Upper Area Court held on page 274 of the record of appeal as follows:- “In the light of the above pieces of evidence showing acts of ownership and possession exercised on the land by both parties, the proceedings at the locus and the observations of the trial court thereon, I am of the view that the consequent findings of the court below at page 197 of the record affirming the decision of the trial court is unassailable. While acknowledging that the court cannot award what is not claimed from it, the court stated correctly the principle of law that in a claim of title to land, the court is at liberty to award only what is proved before the court even where the claim is for a larger portion of the land. See Arabe V. Asaulu (1980) 5 – 7 SC 78 at 85. In other words parties are only entitled to the ascertainable portion of land established by evidence.” At page 276 of the record, the court below concluded thus:- “Therefore, in answer to the 1st issue, I find that both the appellants, as counter-claimants, and the respondent, as one of the surviving plaintiffs at the trial Upper Area Court, proved their claims to the land only to the extent awarded to each of them by the learned trial upper Area Court.” From all I have gathered from the record of proceedings at the various courts below, there is nothing to suggest that they awarded the parties what was not asked for. Rather the trial court awarded the parties what was proved which both the appellate session of the High Court and the Court of Appeal agreed. The conclusion of the trial Upper Area Court as contained on page 168 of the record states: “In conclusion, we find that the plaintiffs succeed in part and we award the described portion of the land starting from a point between Solu Magaji Gambari beacons and locust beans tree called Igba Asinpada, forming boundary with Opoopo family, down to a Nim tree behind Ara Primary School to river Osun and river Oganga. Also forming boundary with Ologbojo family at a beacon under a locust beans tree down to Gori river forming boundary with Gaa Abubu and back to Tunde Adeoye’s house, forming boundary with Liman family. While the defendant also succeeds in part and we award the described land to them, starting from Ologbojo beacons to Osun and Ogangan river, back to Gori and returning to the locust beans tree where Ologbojo beacons is installed” It is my belief that the parties do understand and know the description of the boundaries’ of their respective portions as described by the learned trial Upper Area Court. Why I say so is that none of the parties has filed any appeal in respect of the identity of their respective portions. That, appears, in my view, settled. Now, coming to the argument that the Upper Area Court awarded the parties what was not claimed, I do not agree with the appellants on this. It was even suggested that the trial court partitioned the land contrary to their respective claims. This cannot be the case. The court below made it succinctly clear on page 275 – 276 of the record of appeal thus:- “In this case, the trial court, which had the benefit of listening to the evidence of the witnesses, watching their demeanaur, physically visiting the locus in quo and being shown the extent of the land of each party and the boundaries of these pieces of land, made its findings of fact that both claimants were only able to prove ownership of certain areas of land which it went on to award to each party. This, in my considered view, with due respect to both learned counsel, in the circumstances of this case, does not amount to partitioning. It is a wrong description of what transpired and it is totally misleading.” I cannot agree more. There is nothing to show that the court awarded the parties anything they did not ask for. Rather the claimant and counter-claimant were awarded the portions of land they were able to prove before the trial Upper Area Court. Also, during the visit to the locus, the trial court stated emphatically that both parties accepted the boundaries as shown to the court by each side without any objection. There is no appeal against that finding by the trial court. I had stated earlier that no court can grant reliefs not sought by parties as the court is not Father Christmas. From the facts and decisions of the three lower courts, this is not the case here. The parties were awarded portions of land they were able to prove. I accept and endorse the position of the lower court which affirmed the judgment of both the appellate High Court and the trial Upper Area Court. This issue, is resolved in favour of the respondent. Having resolved the two issues against the appellants, it is only left to be said that there is no merit in this appeal which I hereby dismiss. I affirm the decision of the Court of Appeal which upheld the decision of the appellate High Court and the Upper Area Court, Ilorin. For reason of peaceful co-existence of these two neighbours, I shall allow both parties to bear their respective costs.

SC. 301/2007