Isaiah Robert & Ors. V. Oba Moses Olaleye & Ors. (2010)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
The claims of the Respondents herein, who were the Plaintiffs at the Lagos State High Court (henceforth to be referred to as the lower Court or the Court below) as endorsed at paragraph 52 of their Amended Statement of Claim dated and filed on the 3rd of July, 1999 at the lower Court are as follows:-
“(i) A declaration that the plaintiffs are entitled to a right of occupancy whether statutory or customary, pursuant to the land use Decree/Edict 1978, for all that portion of land situate at Lagos-Badagry Express Way bounded on the north by plaintiff’s village, in the south by Akinyeye Palmgroove, on the east by toil (sic) gate and beyond, on the west by Oko-Afo/plaintiff’s village, more particularly shown and described by survey plan No. LSAT/037/99, verged red, drawn by W. Adeniyi, licensed Surveyor.
(ii) The sum of N50,000.00 being damages for trespass to the said land and;
(iii) Injunction restraining the Defendants, their servants, agents or other members of Ale Community from trespass or repeating the same.”
The Appellants as Defendants at the lower Court denied the claims of the Respondents in their Amended Statement of Defence dated and filed on the 31st day of July, 2002. At paragraph 43 of the said Amended Statement of Defence, the Appellants counterclaimed as follows:-
“(1) Declaration that Defendants are the persons entitled to the statutory or customary right of occupancy to all that large parcel of land shown on the Defendants’ survey plan NO. RL.5/LA/2000 dated 14/2/2000 drawn by Mr. R. O. A. Lawal Registered Surveyor and all other Defendants’ survey plan No. LSAT/037/99 dated 10/5/99 drawn by Mr. Adeniyi, Registered Surveyor.
(2) A sum of N100,000.00 as Damages for plaintiffs’ trespass on the land.
(3) Injunction restraining the plaintiffs, their servants, agents and/or privies from committing any further trespass on the land.”
Pleadings were appropriately exchanged and this case proceeded to trial. At the end of the trial and addresses on both sides, the trial Judge, in a reserved and considered judgment which was delivered on the 28th of September, 2004, declared that the Respondents are the persons entitled to the grant of a right of occupancy over the disputed piece of land. In addition, the Plaintiffs are awarded N30,000.00 as damages for trespass and the Appellants are perpetually restrained from continuing their acts of trespass on the said parcel of land. The Appellants’ counter claim was dismissed with a cost of N10,000.00 to the Plaintiff.
It is against this decision that the Appellants have brought this appeal. Their notice of appeal dated 4th November, 2004 and filed on the 8th of November, 2004 contains 10 grounds of appeal.
The Appellants’ amended brief of argument, which was settled by Adebayo Oyagbola Esq, of counsel to the Appellants is dated and filed on the 26th October, 2006, but deemed filed on the 9th April, 2009. At pages 2-3 of the said brief of argument, the following issues have been formulated:-
“3.01 Whether the learned trial Judge was right to have considered the case of the plaintiff, evaluated the evidence they adduced and grant them judgment before delving into a consideration of the case and evidence of the Defendant.
3.02 Whether the learned trial Judge correctly evaluated the evidence of tradition and recent acts of possession tendered by the Defendant in proof of their pleadings and case before hastily dismissing the counterclaim of the Defendants.
3.03 Whether the learned trial Judge correctly considered the evidence of the Defendants, about the link of the three survey plans tendered by the Defendants to the judgment in favour of the Defendants contained in suit No. 148/1896 before dismissing the counterclaims of the Defendants.
3.04 Whether the learned trial Judge considered the validity and took a correct view as to the evidential value of Exhibit P5.
3.05 Whether the Plaintiffs/Respondents proved the identity of their family land.”
The Respondents’ amended brief which was settled by Kola Gbenga Baiyewu & Co. is dated and filed on the 2nd May, 2007, but deemed filed on the 9th April, 2009. Only one issue was formulated for the determination of this appeal on behalf of the Respondents. This issue which is set out at page 3 of the Respondents’ brief of argument reads as follows:- “Whether the judgment of the lower Court was correct in law i.e. whether the learned trial Judge properly evaluated the evidence at a conclusion.”
The five issues distilled by the Appellants and the only issue formulated by the Respondents principally deal with the assessment of the evidence before the learned trial Judge. Having read through the issues and the submissions of counsel on either side, l am of the firm view that the only issue calling for the determination of this appeal is whether the findings of facts and the assessment of evidence by the trial Court are based on the evidence adduced by both parties before the lower Court. If so has the lower Court properly evaluated such evidence?
In his first argument, Mr. Adebayo Oyagbola, learned counsel for the Appellants submitted that the learned trial Judge did not place the cases of the parties on the imaginary scale of Justice before finding the Respondents’ evidence of traditional history conclusive and credible enough to support their claim for declaration of title to the land in dispute. In a further argument learned counsel submitted that the learned trial Judge relied a document that was rejected as Exhibit but marked as IDI to give judgment in favour of the Respondents.
Mr. Oyagbola’s 2nd argument is that the trial Judge gave judgment to the Respondents before summing up the case for the Appellants. On this learned counsel referred the Court to pages 384-385 of the printed record of this appeal.
According to the learned counsel this is an error. In support, learned counsel cited A. R. Mogaji & Ors v. Rabiatu Odofin (1978) 4 SC 91; Aromire v. Awoyemi (1972) 1 All NLR 105. Learned counsel further urged this Court to dismiss the Respondents’ case as was the case in Vincent Bello v. Magnus Eweka (1981) 12 NSCC 48. Lastly on this segment of argument, learned counsel pointed out the fact that the Respondents’ case was considered at pages 382-385, paragraph 1, while the Appellants’ case was considered at pages 385-386 paragraphs 1 and 2.
The 3rd argument proffered on behalf of the Appellant is that the trial Judge did not give any consideration to the Appellant’s case. According to the learned counsel Exhibits 01, 02, 03 and 04 as well as pages 41-42 paragraphs 132-134 of Exhibit P5 which was tendered by the Respondents were not considered by the learned trial Judge. According to the learned counsel, if the learned trial Judge, had considered these relevant part of the Appellants’ case, the Respondents’ claim would have been dismissed. In aid learned counsel cited Kodilinye v. Odu (1935) 2 WACA 336.
Finally, learned counsel argued that the Respondent did not prove the identity of the land which they claimed. According to the learned counsel it was only in 1999 when they produced a survey Plan No. LSAT/037/99 by W. T. Adeniyi, a licensed surveyor which is Exhibit P1. This part was produced purposely for this case and it did not show the boundaries of the Respondents’ land and more importantly the area purportedly granted by the Respondents to the Appellants.
In conclusion, learned counsel urged the Court to allow the appeal and dismiss the Respondents’ case because the Appellants have proved that they are the owners who are entitled to the right of occupancy over the disputed piece of land.
This appeal clearly attacks the finding of facts and seriously challenges the judgment of the lower Court in an area which is only narrowly open to this Court. The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of the Court of trial and this Court has no jurisdiction to interfere with that performance unless there are special circumstances warranting such interference. See Ejilemele v. Opara & 1 or (2003) 9 NWLR (Pt. 826) 536; Eki v. Giwa (1977) 11 NSCC 96.
Now, I will consider how the lower Court performed in the area of assessing the evidence before it. With respect to the first argument for the Appellants, Mr. Bayewu, learned counsel for the Respondents submitted that the judgment of the trial Court has all the constituents of a good judgment and the trial Judge meticulously evaluated the evidence before him, before judgment was delivered.
At page 382 paragraph 4, the trial Judge said:-
“From the pleadings and the evidence, both the plaintiffs and the Defendants relied on traditional history as the basis of their ownership and both of them pleaded different and conflicting versions of traditional history of ownership. The law is that in such a situation a court in resolving the conflict and deciding on which of the two versions to believe should first assess the conclusiveness of the two versions and where it finds that the two versions are conclusive and that the parties may be honest, then the court will resort to acts of possession in recent years which is within living memory to ascertain which of the traditional history was more probable.”
Clearly the portion of the judgment reproduced hereinabove is a clear indication on the part of the learned trial Judge that the evidence of traditional history before him would be evaluated. This, he proceeded to do at page 383 paragraph 4 – page 384 paragraph 1, where the learned trial Judge meticulously considered pages 24-28 paragraphs 103 to 107 and pages 28-32 paragraphs 108-112 of Exhibit P5 along with Exhibits P2 and P4 and concluded that the Appellants did not challenge the information in Exhibit P5. The learned trial Judge while reviewing the evidence on both sides commented as follows:-
“The Defendants did not challenge the information contained in exhibit P5 and their counsel made copious references to it in his written address. Part of Exhibit P10 was a memorandum written by the Defendants to the Chieftaincy committee of Badagary Local Government wherein they stated the history of the founding of the Ale Community and the first defence witness admitted the document under cross-examination and reaffirmed the truth of its contents. A thorough reading of the memorandum showed that while the Defendants claimed that their ancestors founded Ago-Akinleye, Irewe, Ibiku, Magbon and ale villages and planted Oluporogun trees at these places as a sign of founding, they suggested that Ilogbo Eremi Village had been founded and was already in existence at the time their ancestors got to the place as their ancestors did not plant any Oluporogun tree thereon.”
As can be seen from the portion of the judgment quoted above, the learned trial Judge extensively considered the evidence of the Appellants along with the contents of Exhibit P5, which was introduced in evidence by the Respondents, before the comment which the Appellants termed as judgment at pages 384-385. This comment reads as follows:-
“This court finds Plaintiff’s evidence of traditional history conclusive and credible enough to support their claim for declaration of title to the land in dispute.”
It was after this comment, the trial Judge summarized the evidence of the Appellants. A summary of evidence of both parties does not amount to evaluation of evidences.Oxford Advanced Learners Dictionary, 7th Edition, defines evaluation as follows. “To form an opinion of the amount, value or quality of something after thinking about it.”
What therefore amounts to evaluation of evidence is the opinion formed by a Judge on the amount, value or quality of evidence before him after thinking about or considering such evidence carefully. This the trial Judge in the instant case did at pages 383 paragraph 1 to page 384 paragraph 1, where he clearly considered the evidence adduced by both parties in support of their traditional history. I am therefore satisfied that the learned trial Judge did put the evidence of both parties on an imaginary scale before believing the evidence of the Respondents. This is in accordance with the decision in Mogaji & Ors v. Odofin (1978) 4 SC91 and so I hold.
On the issue of whether it was part of the Respondents’ pleadings that the Appellants paid tribute to the Respondents, paragraphs 27 and 28 of the Amended statement of claim is quite relevant here. These paragraphs are hereunder reproduced as follows:-
“27. The Ale people requested from the then Oba, a riverine area which they claimed was compatible to their god, Alaworo that must be hanged near a stream which said requested (sic) was granted by then Oba, and they were given the present Ale site to settle.
- The Ale people were granted land rights by the Ilogbo-Eremi people,”
Even though, there is no clear statement of paying tribute by the Ale people, it was sufficiently pleaded that the Ale people were customary tenants of the Ilogbo people. Pleadings are not the same thing as evidence. Once tenancy is pleaded, as is the case with paragraphs 27 and 28 of the Amended statement of Defence, payment of tribute which is a necessary component of customary tenancy is presumed. I therefore agree with the learned counsel for the Respondents that the issue of paying tribute was sufficiently pleaded and the trial Judge was therefore right to have considered that issue in his judgment.
The final Issue which Mr. Oyagbola, learned counsel for the Appellants raised is the issue of the identity of the land. The Respondents’ claim as set out at paragraph 52 of their Amended Statement of claim has been reproduced elsewhere in this judgment.
However, for clarity I will reproduce certain portions of the claim. Even at the risk of repetition, I do so herein as follows:- “A declaration that the plaintiffs are entitled to a right of occupancy, for that portion of land situate at Lagos-Badagry Express Way bounded on the north by plaintiffs village, in the south by Akinyeye Palmgroove, on the east by toil (sic) gate and beyond, on the west by Oko-Afo/plaintiffs village, more particularly shown and described by survey plan No. LSAT/037/99 verged red …”
At paragraph 43 of the Appellants Amended Statement of defence, the Appellants’ counter claim is partly reproduced herein below as follows:-
“Declaration that the Defendants are the persons entitled to the statutory or customary Right of Occupancy to all that parcel of land shown on the Defendants’ survey plan No. RL.5/LA/2000 dated 14/2/2000 …and on all other Defendants’ survey plans pleaded and also on the plaintiffs’ survey plan No. LSAT/03/99 dated 10/5/99…”
By the Appellants’ claim as set out above, the disputed piece of land that appears in their survey plans is the same piece of land that appears on the Respondents’ survey plan. This clearly shows that there is no dispute as to the identity of the land in question. The law is very well settled that a survey plan is not a sine qua non in every land case. This is especially so when both parties know the quantity and quality of the land in dispute between them.
In this appeal both parties do know the quantity and quality of the land in dispute, as such a plan ceases to be an absolute necessity. In other words where parties do know the quantity and quality of the land in dispute, proof of identity of the land ceases to be an absolute necessity. See Olunjile v. Adeagbo (1988) 19 NSCC (Pt. 1) 62S; Chief Daniel Allison Ibuluya & Drs v. Tom Benebo Dikibo & Drs (1976) 6 SC 97 at 107; Chief Sokpui v. Chief Agbozo (1951) 13 WACA 241; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360.
I am of the firm view that by the contents of the Respondents’ claim and the contents of the Appellants’ claim at the lower Court, both parties know the extent of the disputed land and the lower Court was justified in not insisting that the parties should have proved the identity of the land which they claimed.
On the whole I resolve all the issues raised by the Appellants against them and the grounds of appeal from which they were formulated are hereby dismissed.
The Respondents are entitled to the cost of this appeal, which I assess at N30, 000.00 against the Appellants.
Other Citations: (2010)LCN/3539(CA)
