Prince Lasisi Oyedeji & Ors. V. Alhaji Sanusi Oyeyemi & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
ALFRED P.E. AWALA, J.C.A.
The Appellants in this appeal were the Plaintiffs at the lower court, the High Court of Justice of Osun State of Nigeria Holden at Ikirun, while the Respondents were the Defendants thereat.
The Plaintiffs’ claims in their Amended Statement of Claim dated 6/6/95 are as follows:-
(a) DECLARATION that the Plaintiffs are the people entitled to the grant of statutory right of occupancy on the piece or parcel of land generally known and called Aara land situate, lying and being at Aara more particularly described in the survey plan No. CS/D/82/001/D of 6/2/95 drawn by Tunji Famobi & Co, Registered Licensed Surveyor.
(b) N100,000.00 (One Hundred Thousand Naira) damages jointly and severally for trespass committed by 1st – 9th Defendants by themselves and/or through their agents, servants and/or privies or otherwise however on the Plaintiffs’ landed property situate, lying and being at Iba as the area known and called Aara land.
(c) Injunction restraining the Defendants by themselves, servants and/or privies or otherwise however from committing further acts of trespass on the said Aara land.
The brief facts that culminated in this action relate to a land at Iba in the Ikirun Division of Osun State commonly known as Aara land which allegedly belongs to Oyedeji Royal Family represented by the Plaintiffs/Appellants. That at the request of the original 1st Defendant (1st Respondent) Oba Tijani Adekanye a portion of the land was given by the Plaintiffs/Appellants’ family to him for farming purpose. That he was therefore their customary tenants. That the said Oba Tijani Adekanye instead converted the land to Adekanye family land and started allocating portions thereof to different people including the 2nd to 9th Defendants/Respondents.
In the course of the proceedings, Oba Tijani Adekanye died and following an application by the Plaintiffs/appellants, Alhaji Sanusi Oyeyemi (for and on behalf of Olugbuyi Ruling House) was substituted for the late original 1st Defendant.
It is the case of the Defendants/Respondents on the other hand, that the land in dispute is a communal or stool land and by custom is vested on any incumbent Eburu (Oba of Iba) holding same in trust for the community and that it does not belong to the Oyedeji Ruling House as alleged and claimed by the Appellants.
Issues were joined on the pleadings as to the character or status of the land in dispute whether it is a family private land of the plaintiffs Oyedeji Ruling House or is a communal or stool land vested in Olugbuyi ruling House represented by the 1st Respondent. After evidence was adduced, learned counsel on both sides addressed the court.
The learned trial judge in his decision handed out on 28th July, 2000 found that the plaintiffs’ claims as contained in paragraph 25 of the Amended Statement of Claim fail and same were dismissed. Dissatisfied, the Plaintiffs/Appellants appealed to this Court by filing a Notice of Appeal dated 31/1/02 formulating four grounds of appeal. In accordance with the Rules of this court, parties learned counsel filed and exchanged their respective briefs. The Appellants raised three issues for determination while the Respondents formulated one.
The Appellants three issues are as follows:-
“1) whether from the pleadings and evidence led in this case the learned trial judge was right in holding that both the 1st plaintiff and the 1st Defendant are from Olugbuyi Family.
2) Whether this action became incompetent by reason of the death of the original first defendant.
3) Whether the learned trial judge evaluated or properly evaluated the evidence given at the trial before arriving at the conclusions in his judgment”
The respondents’ sole issue reads:-
“Whether inspite of the errors contained in the lower court’s judgment the Appellants on the state pleadings and evidence led thereon have established an entitlement to succeed on their claims and whether the errors are of such nature as to vitiate the lower court’s judgment.”
I will consider Appellants’ issue 2 first and foremost for convenience and then proceed to treat their issues 1 and 3 together. In my view, I find the said Appellants’ issues 1 and 3 amounts to be no more than saying that-
“The judgment is against the weight of evidence”. This appeal will be resolved on that equation but only after treating issue 2 first as aforesaid. Now issue two.
Issue 2
In this issue, Appellants learned counsel submits that the appeal against the judgment as contained at page 40 of the record of appeal is wrong. It reads:
“PW1, Gideon Oloyede Oyedeji, in his evidence in chief said that 2nd to 9th Defendants were joined trespassing on (witness) family land and that when they were challenged, they (Defendants) said it was Oba Adekanye that granted or allotted the land to them thus strengthening the defendants’ claim that it is a stool land. The plaintiffs were therefore in court to challenge Oba Adekanye for usage or authorizing the use of their family land. If this were so, the action is incompetent, Oba Adekanye died in 1990 or 1991”. (Emphasis by counsel).
The above finding is contrary to the pleadings and evidence, submits Appellants counsel, and that it is clear from the pleadings and evidence:-
1) That the plaintiffs instituted this action in a representative capacity against the Defendants also in a representative capacity.
2) That the 1st Defendant gave evidence as DW6 at pages 33 of the record testifying that he is from Oba Adekanye family. He was substituted for late Oba Adekanye for and on behalf of Olugbuyi Family.
3) That the 2nd to 9th Defendants were sued jointly and severally for trespass committed by them on the Appellants’ land. That the view held by the trial judge therefore that this action is incompetent because of the demise of the original 1st Defendant Oba Adekanye is misplaced.
Finally Appellants’ counsel argued that by substituting the 1st Defendant for late Oba Adekanye the action is competent against the Olugbuyi family. He cites Kareem v. Wema Bank Plc (1991) 2 NWLR (pt. 174) 435. Otapo v. Sunmonu (1987) 2 NWLR (pt. 58 587.
The learned Respondents counsel concede that the holding of the trial judge that the action is incompetent is in error. Also in error is the view of the trial judge that the 151 plaintiff (151 Appellant) and the 1st Respondent are from Olugbuyi Ruling House, but that these errors however are not fundamental enough to engender miscarriage of justice and can not vitiate the judgment. He cites P.A.S.T.A. Ltd. v. Rhein Mass Und Schifar Komor GMBH (1997) 3 NWLR (Pt. 493) 248. Alli v. Alesinloye (2000) FWLR (Pt. 15) 2610.
The Respondents’ counsel rightly in my considered view, conceded that the holding of the trial judge that the action is incompetent was made in error. Also in error is the learned trial judge’s finding that the 1st appellant and the 1st Respondent are from Olugbuyi ruling House. I agree with Respondent’s counsel however, that the errors are not substantial and fundamental enough as to lead to miscarriage of justice or vitiate the judgment. See Alli v. Alesinloye (supra) Ezeoke v. Nwagbo (1988) 1 NWLR (pt.72) 616 Mora v. Nwalusi (1962) 2 SC NKR 73 and Ndeze v. Chidebe (1990) NWLR (pt. 125) 141.
Now, Issues 1 and 3 together, then the sole Issue raised by the Respondents, be considered next. They read:
- “Whether from the pleadings and evidence led in this case the learned trial judge was right in holding that both the 1st plaintiff and the 1st Defendant are from 0lugbuyi family.
- Whether the learned trial judge evaluated or properly evaluated the evidence given at the trial before arriving at the conclusions in his judgment.”
And Respondents sole issue “whether inspite of the errors contained in the lower court judgment the appellants on the state of pleadings and evidence led thereon have established an entitlement to succeed on their claims and whether the errors are of such nature as to vitiate the lower court’s judgment.” (Underlined for emphasis).
Issues 1 & 3 are considered together by the Learned Appellants counsel. He submits that the learned trial judge completely misunderstood the case of the parties. In paragraph one of the Amended Statement of Claim dated 6/6/95, the plaintiffs aver that the 1st plaintiff is and was at all material times the head of Oyedeji Ruling House. “In paragraph two, that the 2nd Plaintiff is a maternal cousin of the 1st plaintiff.
In paragraph three they averred that the 3rd plaintiff is the eldest son of Prince Albert Okelola Oyedeji, the then customary trustee of the Oba Oyedeji family land. They averred that they bring this action on behalf of themselves and Oyedeji Ruling House. Giving evidence for the plaintiffs as PW1, the 1st plaintiff, stated that the family of Oba Oyedeji owns the land in dispute.
On the other hand, the defendants in their further Amended Statement of Defence dated 12/7/99 averred that “the 1st Defendant represents the Olugbuyi Ruling House of Iba from where the late Oba Tijani Adekanye emerged as Eburu (Oba) of Iba.”
In his evidence the 1st Defendant (now on record) as DW6 confirmed that he is from Olugbuyi Ruling House.
Appellants’ counsel then submits that this misunderstanding of the parties’ case contributed substantially to the wrong conclusion reached by the learned trial judge in his judgment. For example the learned trial judge was of the opinion that because the 1st plaintiff and the 1st Defendant are from the same family they were economical both in their pleadings and that this erroneous view held by the learned trial judge has resulted in a denial of justice to the Appellants who are seeking reliefs from the court.
For example, the learned trial judge held as follows at page 40 of the transcript record.
“From the evidence before the court and the pleadings the central issue in this case is whether the land is communal land or stool land.” (Emphasis by counsel).
Contending further, Appellants’ counsel submits, it is clear from the pleadings that the case put forward by the plaintiffs is that the land in dispute is owned by the Oyedeji family while it is the case of the defendant that the land in dispute is communal or stool land. ‘
He cites African Continental Seaways Ltd v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 SC 235, where the Supreme Court emphasized the need for the courts to limit themselves severely to the issues raised by the parties. Per Irekefe JSC
“To do otherwise might well result in a denial of justice to one or other of the contesting parties.” (Emphasis by counsel)
Appellants’ learned Counsel concluded that there is a whole world of difference between family land and stool land (otherwise called communal land) He cites Olusesi v. Oyelusi (1986) 3 NWLR (Pt. 31) 634.
Contending further, Appellants learned counsel submits that because of the view held by the learned trial judge above, he failed to evaluate or properly evaluate the evidence before the court. Several documents were tendered in evidence none of the documents was analyzed in the judgments neither was the effect of any of them considered in relation to the case put forward by the parties. The learned trial judge for example failed to consider in any form whatsoever the evidence of PW2 who is the Eburu (Oba) of Iba.
The case of the Defendants/Respondents is that by custom the incumbent Eburu is the custodian for life of a large parcel of land at Iba which includes the land in dispute, but here is the current Eburu saying the land in dispute belongs to the Plaintiffs/Appellants’ family. Counsel submits it is the duty of the trial judge to weigh all the evidence led at the trial on an imaginary scale so as to determine where the scale tilts. He cited Odofin v Mogaji (1978) 4 SC 91.
Counsel urged us to resolve issues 1 and 3 in the favour of the ppellant and allow the appeal. Alternatively that we remit the case back to the lower court before another judge for trial de novo.
Now, the sole issue formulated by the Respondents’ learned counsel in the Respondents’ brief in reply to the Appellants’ counsel argument above is “Whether inspite of the errors contained in the lower court’s judgment the Appellants on the state of pleadings and evidence led thereon, have established an entitlement to succeed in their claims or whether the errors a re of such nature a s to vitiate the lower court’s judgment.”
Respondents’ learned counsel then argued as follows:-
Firstly, that the Plaintiff’s claims for a declaration of entitlement to a statutory right of occupancy of the land in dispute, damages and injunction are incompetent. That by their claim to title to the land in dispute title is put in issue; more so when the same is in the possession of the Respondents and this fact is not denied. He cites Babalola v. Aladejana (2001) FWLR (P6.61) 1670.
Secondly, therefore the burden of proving title rests squarely on the Appellants. He referred to sections 136, 137(1) and 139 Evidence Act. That, it is for the Appellants to discharge the onus to entitle them to judgment on their claims. He cites Are v. Adisa (1967) NMLR 304, Oyedeji V. Akinyele (2001) FWLR (pt. 77) 970.
Contending further, Respondents’ counsel submits that the Appellants’ claim thus resting on traditional history or on evidence of inheritance by succession devolving from late Samuel Okunoye Oyedeji; will need to prove the title of late Samuel Okunoye Oyedeji for their succession to the land in dispute to be upheld. In short they must plead and prove by evidence (1) who founded the land (2) How the Land was founded (3) particulars and names of intervening owners, without breakage or lapses, through whom the land has passed before getting to the 1st Appellant. He cites Adejumo v. Ayantagbe (1989) 3 NWLR (Pt. 75) 238, Alli v. Alesinloye (2000) FWLR (Pt.15) 2610, Dike v. Okolo Edo (1999) 7 SCNJ 248.
Submitting further Respondents’ counsel contends that the pleadings and evidence led by the Appellants are bereft of the facts and names of how the land was founded, who found the land and genealogical rendering of successive person through whom the land passed before reaching the 1st Appellant to prove inheritance under Native Law and custom save that the land in dispute belonged to the Late Oba Samuel Okunoye Oyedeji from whom he inherited without any attempt being made and pleaded to establish and prove Late Oba Samuel Okunoye Oyedeji’s own history. Respondents’ learned counsel then submits that the Appellants have not pleaded sufficient facts required to show inheritance customarily and have not led any evidence traditionally entitling them tot he judgment of the court a nd consequently have not discharged the evidential burden placed upon them, hence their claims failed. He cites Mogaji v. Odofin (1978) 4 SC 91, Ezewusi v. Okolo (1993) 5 NWLR (pt. 294) 478.
Contending further, Respondents’ learned counsel submits that by paragraphs 5, 8, 9 and 10 of their amended Statement of Claim they averred that the 1st Respondent was their customary tenant over the land in dispute and they led evidence orally in affirmation which was denied in paragraphs I and 3 of the further amended statement of defence and plan thus putting upon them the burden of adducing evidence to establish and prove the Respondents’ customary tenancy status and its consequences which they failed to do. The appellant needed to prove for example their title to the land as well as the incidences of customary tenancies that go with the same like payment of tribute (Ishakole) or adduce evidence that it is the custom of Iba not collect Ishakole on such tenancies as no evidence of payment of tribute to them was ever led nor pleaded and in fact it is the 1st Respondents who, by paragraph 3E of their amended statement of defence, pleaded and led evidence of payment of tribute by 2nd – 9th Respondents to late Oba Tijani Adekanye.
Counsel then urged us to hold that there is no evidence of the existence of customary tenancy between Appellants and the Respondents to warrant an inference of ownership of the land in dispute by the Appellants. He cites Ugbeduma v Abiegbegba (1991) 8 NWLR (Pt. 207) 261. Iroagbara v. Ufomadu (2001) FWLR (Pt.61) 1753.
Contending further, Respondents’ counsel argued that the Appellants not having proved the ownership of the land in dispute as belonging to late Oba Samuel Okunoye Oyedeji or the Oyedeji Ruling House the lower court’s verdict of dismissal was proper.
Submitting further respondents’ counsel contends that the courts are enjoined to act only on legally admissible evidence before it. He cites Obukor v. Oboro (2000) FWLR (Pt. 47) 1004. The evidence on record, counsel submits, does not support the judgment being in favour of the Appellants at all inspite of the errors of the trial court in stating that the 1st Appellant and the 15t Respondent are from Olugbuyi Ruling House (which errors had been conceded). That the lower court’s judgment is the correct decision. It is based on the evidence before the court and is properly arrived at by the court. He cites Yusuff V. Oyetunde (1998) 10 SCNJ 1 at 16. Ibrahim v. JSC (1998) 14 NWLR (Pt. 584), Eberuche & Ors. v. Ukpakara & Ors. (1996) 7 SCNJ 192.
Finally Respondents’ counsel submits that Appellants amended statement of claim filed sequel to and after the order substituting the 1st Respondent for the deceased Oba Tijani Adekanye which said statement of claim had superceded the writ of summons and by paragraphs 5, 7, 8, 9, 11, 12, 13, 17, 18, 19, 20, & 21 contained allegations against the person of the deceased Oba Tijani Adekanye in person and not his Ruling House represented by the 1st Respondent. That the Appellants never bothered in filing their consequential amended statement of claim to amend their pleadings to reflect the changed capacity of the Respondents nor to make a claim against the Olugbuyi Ruling House and not the person of Oba Tijani Adekanye. This incongruity, learned counsel submits was observed by the learned trail judge and on the state of the pleadings and evidence no claim against Olugbuyi ruling House was made nor established and none could have been established against Oba Tijani Adekanye. Respondent’s learned counsel then submits that, that being the case the learned trial judge reached the right decision in dismissing of the Appellants’ claim the errors notwithstanding.
Contending finally, Respondents’ counsel submits that the errors earlier identified by the appellants’ counsel and conceded by Respondents’ counsel are not so fundamental as to affect the judgment to occasion miscarriage of justice nor can it be held to vitiate the judgment. He cites Onajobi v. Olanipekun (1985) 4 SC (Pt. 2) 156, Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539. He urges us to resolve this issue in favour of the Respondents and dismiss the appeal.
Now it is trite that not all wrongful admission of evidence shall of itself constitute a ground for the reversal of a judgment where it appears on appeal that such evidence or mistake cannot reasonably be held to have affected the decision if such evidence or error had not been made or admitted. In the instant case, it is my view, the two errors in the judgment conceded to by the Respondents’ counsel namely:
(1) That the 1st Appellant and the 1st Respondent are from Olugbuyi Ruling House which is wrong.
(2) That by the death of Oba Tijani Adekanye the action becomes incompetent which is also mistaken; (because 1st Defendant was duly substituted for the late original 1st Defendant) are not fundamental to occasion a miscarriage of justice as they have not substantially affected the decision of the lower court. See Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 216, Umeijiako v. Ezenamuo (1990) 1 NWLR (Pt.126) 253. Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt. 136) 70, Idundun v. Okumagba (1976) 9-10 SC 227. Olubode v. Salami (1985) 2 NWLR (pt.7) 282 and Adeyeri v. Atanda (1995) 5 NWLR (Pt.397) 512.
It is essential that I emphasize that in a claim of title to land the onus is on the plaintiffs (the Appellants here) to prove ownership and it is for them to rely on the strength of their evidence rather than on the weakness of the Defendants’ (Respondents) case, although they are entitled to take advantage of the defence evidence which support their claim. There is no such situation here. The appellant failed to prove their case. The law also is that there is no need for the defendant to respond to a claim based on defective evidence when the defendant had not counter-claimed. It is also the law that the plaintiff must plead and prove the names and histories of how they came to own the land in dispute whether it was by grant or by settlement or by conquest. See Ezewusin v. Okoro (1993) 5 NWLR (Pt. 294) 478. Piaro v. Tenabo (1976) 12 SC 31, Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 616. Alade v. Awo (1975) 4 SC 31.
Finally I refer to the rule in Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt. 7) 236 at 427-429 referred to and adopted by the Supreme Court in Onvido v. Ajemba (1991) 4 NWLR (Pt. 184) 232 where our Apex Court held inter alia that a person who traces the root of his title to a person or to a family must establish how that person or family also came to have title in the land vested in him or it.
Issues 1 and 3 raised by the appellants and the sole issue distilled by the respondents are resolved against the appellants and in favour of the Respondents.
In the final analyses I hold this appeal totally lacks merit. It is dismissed with N5,000.00 cost in favour of the Respondents against the Appellants.
Other Citations: (2007)LCN/2377(CA)
