Alhaji Raufu Bamikole Okegbemi V. Ayisatu Akintola & Ors. (2007)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A.
The Appellant and one other Plaintiff, who later died in the course of trial, instituted an action against the Respondents herein, at the Ibadan High Court of Oyo State, wherein they claimed as follows in their Statement of Claim –
(a) N20,000.00k (Twenty Thousand Naira) special and general damages jointly and severally against the Defendants for trespass committed by them on Plaintiffs’ family land situate, lying and being at Okegbemi Village, Moniya Area, Ibadan on or about the 29th of January, 1990.
(b) An order of this Honorable Court restraining the Defendants, their servants’ agents or privies from entering into the said land and committing further acts of trespass thereon.
Upon being served with the Statement of Claim, the Respondents filed a Statement of Defence and further Counter-Claimed for the following –
(a) A declaration that the 1st Defendant is the person entitled to be granted a statutory right of occupancy on all that piece or parcel of land measuring approximately 12 hectares more particularly delineated and marked red in plan number LSAT/Y/151 drawn and signed by W.T. Adeniji (Licensed Surveyor) dated 24th August, 1993.
(b) Perpetual Injunction restraining the Plaintiffs, their agents, servants and privies from further trespassing on the 1st Defendant’s land.
(c) N2,000.00 general damages for trespass committed by the Plaintiffs on the 1st Defendant’s land.
The pleadings were subsequently amended; the Appellants filed a “Reply to Amended Statement of Defence”; and with the leave of Court, the Respondents filed a “Rejoinder to Reply to Amended statement of Defence”.
At the trial, the two Plaintiffs and their three other witnesses gave evidence to the effect that the Appellant’s ancestor, Bamikole, was the first person to settle on the land in dispute and he was the one who granted land to the 1st Respondent’s ancestor, Adegboro, which does not include the land in dispute.
The 1st and the 3rd Respondents testified and called four other witnesses, who claimed that the land was given to the 1st Respondent’s ancestor, Adegboro by Folarin, a warrior who was settled on the land by his warlord, Ogunmola. After hearing addresses of counsel, the learned trial Judge, Boade, J., delivered Judgment on the 20th of February 2002, wherein he held as follows.
“Bamikole claimed to have settled in the area first but failed to establish how he came to settle there whether it was by conquest or grant as against the claim of Folarin that he was settled there by his warlord, Ogunmola. The fact that P.W.3 gave evidence that it was Bamikole that granted his ancestor land in the area does not remove the need for the Plaintiffs to explain how their ancestor settled on the land… There is no credible evidence that all the surrounding land of the land in dispute once belonged to Okegbemi family as to make the family the owner of the land in dispute. I therefore find it difficult to accept the evidence of traditional history as being conclusive to establish that the Plaintiffs have better title than the Defendants”.
He further held as follows on the Respondents’ Counter-Claim –
“For the Defendants to succeed – -they must satisfy the Court on the validity of Ogunmola’s title i.e. on how Ogunmola derived his title……… The Defendants failed to establish how Ogunmola derived his title before he granted the land to Folarin. In the light of the forgoing, I do not find the evidence of the traditional history to be cogent enough to support the claim of the Plaintiffs, neither are the pieces of evidence cogent enough to sustain the claim of the defendants. Where there is a conflict in traditional history, – – the traditional history is to be tested by recent facts established by evidence with a view to determining which of the conflicting versions is more probable” (Italics mine)
After a review of the evidence, he concluded as follows at pp. 100 – 101:-
“……..The Defendants have proved the acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the 1st Defendant is the true owner of the land in dispute. The first Defendant has shown better title on the land in dispute than the Plaintiffs and she is entitled to the reliefs she claimed in the counter-claim. In conclusion, the Plaintiffs’ claim fails and is accordingly dismissed while the 1st Defendant’s Counter-Claim succeeds and the three legs of the Counter-Claim are granted……..”
Dissatisfied, the Appellant has appealed to this Court with a Notice of Appeal containing 8 Grounds of Appeal, and he formulated 3 Issues for determination there-from in his brief of argument prepared by Chief O. A. Ogundeji; that is-
- Whether learned trial Judge was justified in dismissing the Plaintiffs’ claims before him especially when they pleaded and –
(a) Led cogent evidence of their root of title to the land in dispute;
(b) And tendered documents and led evidence that surrounding lands to the land in dispute formerly belonged to the Plaintiffs to make them owner of the land in dispute and the Defendants’ case supported the Plaintiffs in this regard.
- Whether the learned trial Judge was justified in allowing the 1st Defendant’s counter-claim especially when –
(a) She failed to plead or lead cogent evidence of her root of title to the land in dispute.
(b) Her possession of the land in dispute (if any) was based on defective root of title.
- Whether on the weight of evidence before the trial Court, the Judgment can be sustained.
The Respondents however contended in their brief prepared by Prince Bioye Oloyede Asanike that the sole issue for determination in this case is –
“Whether from the evidence before the learned trial Judge he was justified in dismissing the Appellant’s claim and granting the Respondent’s Counter-Claim”.
I must say that the Issues formulated by the Appellant are rather untidy and quite unacceptable to me. He formulated 3 Issues from 8 Grounds of Appeal and proceeded to further sub-divide Issues 1 & 2 into (a) & (b), which is just too cumbersome for a just determination of the appeal – see Iloabuchi v. Ebigbo (2000) 8 NWLR (pt.668) 197. In any case, the 8 Grounds of Appeal complain about the lower Court’s handling of the evidence before it, I will therefore adopt the Respondent’s sole Issue in dealing with this appeal.
The gist of the Appellant’s submission is that they (i.e. the Plaintiffs) pleaded and gave evidence that their ancestor, one Bamikole Okegbemi was the first person to settle on the land in dispute when it was a virgin forest, and they traced the history of the land from that time to the present time when it devolved on their present head of family; and that they did not claim their ancestor became the owner of the land by grant or conquest, rather it was the 1st Respondent who pleaded and led evidence that Folarin granted her the land in dispute and Folarin was himself granted the said land by Ogunmola.
Citing Alli v. Hussain (2003) F.W.L.R. (part 138) 1398, it was argued that the Respondents’ traditional history broke down in that they failed to plead or lead evidence as to how Ogunmola became the owner of the land, and that their own traditional evidence is cogent, plausible, and conclusive, and can on its own support and/or sustain their claim since they gave evidence of:-
(a) Who founded the land i.e. their ancestor, Bankole
(b) How the land was founded i.e. act of settlement by Bankole when it was a virgin forest and,
(c) Particulars of intervening owners – i.e. Bankole Okegbemi descendants including the Plaintiffs.
Citing Ajagunna v. Amusan (2003) F.W.L.R. (part 16) 1850; Idundun v. Okumagba (1976) 1 N.M.L.R 200; Morenikeji v. Adegbosin (2003) F.W.L.R (part 163) 45, Kolo v. First Bank of Nigeria Plc (2003) F.W.L.R (part 179) 1303, it was argued that they pleaded and proved ownership by:
(i) Traditional evidence which was accompanied by long possession and enjoyment of same from the time Bamikole (Plaintiffs’ ancestor) first settled thereon to the present moment.
(ii) Proof of possession of land connected or adjacent and 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.
On their part, the Respondents referred the Court to paragraphs 10 to 13 of the Amended Statement of Claim and the evidence of the deceased Plaintiff as PW1, and citing Ewo v. Ani (2004) 1 SCNJ 272, submitted that the pleadings fell short of the requirement of the law as to traditional evidence, and the Plaintiffs failed to proffer evidence to show how Bamikole actually got to the land before settling thereon; that it is trite law that where traditional evidence is inconclusive, the case must rest on question of fact, citing Agedegudu v. Ajenifuja & ors (1963) 3 N5CC 89; that whilst they claimed that Bamikole farmed on the land in dispute, which infers possession, none of their witnesses stated that he or any of their ancestors had harvested anything on the land nor had anybody done that on their behalf in the past, neither do they have any farm there; and that it is also trite law that the issue of trespass goes with proof that the Plaintiffs owned the land exclusively or was in possession of the same before the commencement of this action or had proved the right to its possession, citing Ndukwe v. Acha (1998) 5 SCNJ 28, & Udih v. Idemudia (1998) 3 SCNJ 36.
To simplify matters and clear the way to the real issues at stake in this appeal, I must quickly say that the lower Court erred when it required the Appellants to prove that Bamikole settled on the land “by conquest or grant”.
The Plaintiffs’ claim was not that Bamikole got the land by conquest or grant but that he was the original settler on the said land, and the law recognizes the fact that first settlement upon land is one of the oldest methods of acquiring title to land. In other words, if traditional evidence of first settlement is accepted, title can be declared on such traditional evidence – see Odofin v. Ayoola (1984) 11 SC 72, Ajagunna v. Amusan (2003) 9 NWLR (Pt. 82S) 291, & Alli v. Alesinloye (2000) 6 NWLR (pt 660) 177 SC, where the Supreme Court per Iguh, JSC, observed as follows at 206 –
“I think, with profound respect, that the Court of Appeal ………. would appear to have misconceived the Appellants’ case before the trial Court. The case for the Appellants was never that their predecessors in title, Opeagbe, was granted the land in dispute by any body but that he acquired the same by settlement in accordance with customary land. 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 was either alleged or existed’.
In this case, the Plaintiffs did not need to explain how their ancestor settled on the land in dispute, and the lower Court erred in expecting more evidence from the Plaintiffs than they were required to lead, but it is not every error committed by the lower Court that will result in its Judgment being set aside.
It must be demonstrated that the error was substantial and formed the basis of the decision complained of and that it resulted in a miscarriage of justice – see Larmie v. D.P.M.S. Ltd. (2005) 18 NWLR (pt. 958) 438 SC. In this case, the Plaintiffs had to establish the fact that Bamikole was the first person to settle on the land in dispute “to the satisfaction of the trial Court” – see Alli v. Alesinloye (supra), and it is apparent from its findings that the lower Court was not in any way satisfied with the evidence of the Plaintiffs and their witnesses, particularly those of PW3 & PW4, whose evidence it disregarded on the grounds – that they merely testified that their ancestors were granted land by Bamikole and no more; they did not state that they are boundarymen as alleged by the Plaintiffs in their own evidence; the fact that Alada Family is a boundary-man was not pleaded by the Plaintiffs; and Exhibit 1, the Plaintiffs’ Survey Plan did not include Alada Family as a boundary-man.
The Respondents submitted that the evidence of PW3 & PW4 was properly rejected by the lower Court. In their view, PW3 was a hired witness, and this Court was urged to uphold the lower Court’s findings on the grounds that –
(a) PW3 was neither the head nor representative of the Alada family;
(b) PW3 had been away from the village several years earlier and only returned in 1997 (3 years before he gave evidence);
(c) His Uncle, Adeagbo, was a traditional Chief under Folarin Village and he became a Chief after the death of witness’s father who was older;
(d) His Uncle at that time was the eldest person at Alada Village when he was made a Chief under Folarin, and it stood to reason that if his father were alive he probably would have been made the Chief.
(e) He spent 5 years in the North before coming back in 1978 and even at that did not go back to Alada. He only returned to Alade 3 years before he gave evidence in the case on 21st February 2000, which is sometime in 1997, and this case begun in 1990 with the case at the Magistrate Court – Suit MI/269C/90 (Exhibit 5); and
(f) His evidence was also not pleaded.
The Appellant however submitted in his Reply Brief that their Survey Plan, Exhibit 1, shows that the land in dispute is bounded on two sides by their land and by Adelani Omo Iyalaje’s land and when construed along with Respondent’s Counter-Plan, Exhibit 4, it is bounded by the Alada family land.
Furthermore, that PW3 & PW4, who are their grantees, were called to give evidence as boundary-men, and since the Respondents did not call any boundary-man to give evidence, the evidence of PW3 & PW4 was credible in the circumstances to prove that the Plaintiffs were the owners of the surrounding pieces or parcels to the land in dispute at one time or the other.
Now, there are very strict limitations on the power of this Court to set aside or reverse the decision of the trial Court on issues of fact. For one, this Court cannot embark on a re-evaluation of the evidence and thereby arrive at a different conclusion from that of the trial Court, because an Appellate Court is not permitted to inquire into disputes but to inquire into ways the disputes have been tried and settled – see A. G. Ekiti State v. Daramola (2003) 10 NWLR (pt. 827) 104 SC Moreover, to reverse the decision of a trial Court, which is based mainly and substantially on its assessment of the quality and credibility of witnesses who testified before it, this Court must not only entertain doubts that the decision of the trial Court is right but must also be convinced that it is wrong – see NEPA V. Role (2000) 7 NWLR (pt 663) 69.
In this case, the lower Court did not find the evidence of traditional history presented by both parties cogent enough to support their respective claims, and I have no reasons whatsoever to dispute that finding. PW3, Murana Adekola of the Alada Family, and PW4, Wahabi Omo Iyalaja of the Iyalaja Family, who were to have testified as boundary-men, made no mention of that fact, and the lower Court was right to discountenance their testimony.
Furthermore, as the lower Court noted, the Plaintiffs relied on Exhibit 2, a copy of a Judgment in Suit No. CVA/37/71 delivered by the Grade ‘A’ Customary Court, Ibadan, on 19/9/71, to prove payment of ishakole by Folarin to Okegbemi, but the Respondents tendered Exhibit 3, a copy of a Judgment in Suit No. I/44A/73 delivered on 14/1/77 by an Ibadan High Court, which set aside the decision of the said Customary Court, Ibadan, on appeal, thereby rendering Exhibit 2 ineffective. In the case of the Respondents, they had to establish how Ogunmola, Folarin’s warlord, got onto the land in the first place before he granted it to Folarin, and this they clearly failed to do.
It is well settled that a party relying on evidence of traditional history must show who his ancestors were and how they came to own and possess the land and eventually passed it to him – see Oyadare v. Keji (supra), Ojoh v. Kamalu (supra), where the Supreme Court per Tobi, JSC stated as follows –
“The evidence required is not evidence of yesterday or a few years ago but one of many years; what the lawyers call “immemorial” evidence, which means back to ancient times. In other words, for evidence of traditional history to be acceptable, it must go back to ancient times in the sense that the evidence existed for a very long time. The evidence must have endured through generations”. (Italics mine)
Faced with two competing traditional histories, the lower Court applied the principle in Kojo II v. Bonsie and Anor(1957) 1 WLR 1223, which states that-
“- – Where there is a conflict in traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanor is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable”. (Italics mine)
After a review of the evidence, the lower Court concluded as follows –
“In the circumstances, the Defendants have proved the acts of ownership extending over a sufficient length of time, numerous and positive enough as to warrant the inference that the 1st Defendant is the true owner of the land in dispute”.
As I pointed out earlier, findings of fact made by a trial Court are entitled to respect by an appellate Court, particularly when it is clear that the trial Court had performed its primary duty of evaluating and ascribing probative values to the evidence before it properly – see Admin. Gen. Delta State v. Ogogo (2006) 2 NWLR (pt 964) 366 & Trade Bank Plc v. Yisi (Nig.) Ltd (2006) 1 NWLR (pt. 960) 101. In this case, the lower Court did a proper job of evaluating the evidence before it, and I have no reason to doubt its findings.
The evidence before the lower Court was overwhelming in favour of the Respondents being in possession, and the lower Court was right to so hold. Possession means the occupation or physical control of a parcel of land, either personally or through an agent or servant of the claimant – see NITEL Plc. v. Rockonoh Prop. Co. Ltd. (1995) 2 NWLR (pt. 378) 473. In this case, the lower Court accepted the evidence of DW4, Yisa Lawal, a farmer, who testified that he got permission from the 1st Respondent’s sister, Oyenihun, to farm on the land. Under cross-examination, he replied as follows –
“Before this case started, nobody from Okegbemi Family had ever challenged me on the land I farm on. No member of Okegbemi Family planted any crop on the land”.
The lower Court also accepted the Respondents’ evidence that they had been farming and harvesting the palm fruits on the land in dispute until 1990 when the Plaintiffs went to remove their harvested palm fruits, which led to the charge against them in the Magistrate Court. PW1 admitted that he went to the land in dispute in January 1990 and met the five Respondents cutting up palm trees, and that some of them were charged for stealing the Respondents’ palm fruits before they instituted this action at the lower Court.
In any case, there is nowhere in their evidence, that the Plaintiffs, including the Appellant, ever said that they did anything, like farming, etc., on the land.
The end result is that the appeal totally lacks merit and is hereby dismissed.
The Respondents are awarded costs assessed at N5,000.00.
Other Citations: (2007)LCN/2378(CA)
