A. Makanjuola & Anor V. Chief Oyelakin Balogun (1989)

WALI, J.S.C. 

In the High Court of Justice of Oyo State of Nigeria. Ibadan Judicial Division, the plaintiff sued the defendants jointly and severally asking for the following reliefs:-

“1. Declaration of title under Native Law and Custom to all that piece or parcel of land, situate, lying and being at Elere Stream, Igbo-Elere, Ibadan.

2. One Hundred Naira (N100.00) being damages for continuing trespass committed by the 1st defendant on the plaintiff’s land, situate, lying and being at fgbo Elere Stream Ibadan, sometime in May, 1977.
3. An Order for injunction restraining the defendants, their servants or privies and/or agents from committing further acts of trespass on the aforesaid land.”

Pleadings were ordered, filed and exchanged and issues joined. Before the taking of evidence commenced, the plaintiff, by leave of the trial court, filed an Amended Statement of Claim and in paragraph 26 thereof he asked for the following reliefs:-

“I. Declaration that the plaintiff is entitled to a Certificate of Occupancy (customary) in respect of the farmland, situate ,lying and being at Elere Stream, Igbo Elere, Ibadan.

2. One Hundred Naira (N100.00) being damages for trespass committed on the plaintiff’s land, situate, lying and being at Elere Stream, Igbo Elere, Ibadan, on May 14th, 1977.
3. An Order for injunction, restraining the defendants, their servants or privies and agents from committing further acts of trespass on the aforementioned farmland shown on Plan No. KESH/R/407A.”

At the end of the trial the learned trial Judge (Ademakinwa, J.) considered the evidence adduced before him, made findings of fact, among which are the following:-

“It is generally accepted principles of law that ownership of land may be proved in five ways, two of which are by traditional evidence and evidence of acts of possession. (See Idundun v. Okumagba (1976) 1 N.M.L.R. 200 at page 210).

The plaintiff in this case is relying on the traditional evidence as to how his predecessors-in-title came by the land and the acts of possession exercised thereon since then.

If anything is clear from the evidence adduced in this case it is that at a point in time Bello Adediran, the vendor of the plaintiff was in possession of a parcel of land somewhere in the vicinity of the land now in dispute. The plaintiffs case is that Bello Adediran inherited the land from his father Odunlami to whom the land was granted by the original owner known as Ago.

The defendants on the other hand maintained that Bello Adediran was in possession of another parcel of land in the vicinity but quite distinct from the land in dispute, as a tenant of the ancestor of the 2nd defendant, known as Sanni Aderohunmu Amubikaun, who was said to have settled on the land after the Gbanamu war.

On this particular point, the evidence adduced by plaintiff through (sic) on 9th, 10th and 11th P.Ws. and the judgment of the Ibadan No.3 Grade “B” Customary Court (Exhibit “N”) would appear to be more convincing than that adduced by the defendants. Of particular note is the evidence of the 10th P.W. Ogunnihun Ajeigbe who at the age of about 84 years had had the opportunity of knowing Bello Adediran and the grandfatherofthe 2nd defendant personally.

Unlike the 9th and 11th P.Ws, who are children of the late Bello Adediran, this witness was not shown to have been related to Bello Adediran. She is the daughter of Babajide, who like Bello Adediran was another grantee of Ago. It has been elicited under cross-examination that this witness was involved in a land dispute with one Adedeji Ola in which the 2nd defendant supported her opponent.

I have therefore warned myself of the possibility of her evidence being tainted by prejudice against the 2nd defendant. But on the whole I am convinced that she was telling the truth. I therefore accept her evidence and that of the other witnesses for the Plaintiff as to the traditional history of the land granted by Ago to Odunlami, the father of Bello Adediran, the vendor of the plaintiff in this case.

There is also the evidence of act of possession exercised by the plaintiff’s vendor as exemplified by the certified true copy of the judgment of the Ibadan No.3 Grade “B” Customary Court in Suit No.25/59 between Bello Adediran v. Sadiku Oloke & Anor., which was tendered and admitted in this case as Exhibit “N”. At page 34 of the Exhibit the Customary Court of trial had found that Bello Adediran, the plaintiffs vendor, had been in possession of a parcel of land at Oniponrin, Ibadan District for a considerable number of years and that the said Bello Adediran inherited the land from his father. The land in question was more particularly delineated in the Plan No. 305/59 dated the 17th June, 1959 and admitted as Exhibit “A” before the Court.”

……………………

“The plaintiff’s claim has been based on the sale of the land to him by Bello Adediran under native law and custom.

…The requirements for the transfer of an absolute title to land under native law and custom are that the grant or sale must have been concluded in the presence of the persons) who must also witness the actual handing over of the land (See: Taiwo v. Ogunsanya (1967) N.M.L.R. 375 at page 379. From the evidence of the 9th and 11th plaintiffs witnesses, I am satisfied that the sale to the plaintiff by Bello Adediran has complied with the requirements for a valid transfer of land under native law and custom.”

“I am satisfied that the land, the sale of which was being negotiated in Exhibits “L” and “R” is a piece of land at Alate Village and not Elere Stream, Igbo Elere, which is the subject-matter of the present action. In any event I do find whatever admission that may be implied from the contents of Exhibit “L” sufficiently strong to counteract the evidence as to traditional history and acts of ownership adduced in this case. What this all boils down to is that I do not consider her evidence both as to the traditional history and acts of ownership adduced on behalf of the defendants in this case either satisfactory or convincing.”

“It is trite law that in an action for declaration of title, the onus is on the plaintiff to show clearly the boundaries of the land claimed by him (See: Udofia v. Afia (1940) 6 W.A.C.A. 216 at page 217; Baruwa v. Ogunshola (1938) 4 W.A.C.A. 159; Amata v. Modekwe (1954) 14 W.A.C.A. 580 at pages 582-583. It is also for the plaintiff to prove the actual extent of the land claimed. Failure to prove this will result in the dismissal of the claim. (See: Rufai v. Ricketts (1934) 2 W.A.C.A. 95. As the plaintiff in this case has failed to establish clearly the area and extent of the land to which his claim relates, the Declaration sought must be refused and it is hereby refused.”

The learned trial Judge, then concluded-

“Finally an order of injunction would not be granted in respect of a parcel of land which is not ascertainable. (See: Ayoola & Ors. v. Ogunjinmi (1964) 1 All N.L.R. 188). On this principle of law, it follows also that the plaintiff’s claim for injunction must fail and it is hereby dismissed.”

Dissatisfied with the dismissal of his case by the trial court, the plaintiff appealed to the Court of Appeal. In the Court of Appeal two grounds of appeal were canvassed, one of which was omnibus. Ground 2 was dealing with the identity of the land in dispute.

The Court of Appeal, after hearing learned counsel on both sides, reconsidered the conclusions of the learned trial Judge based on the findings he made on the evidence before him, particularly on the identity of the land in dispute, and concluded – (per Omo, J.C.A. with Aikawa & Onu, JJ.C.A.

concurring):-

“The plaintiffs pleadings refer to the land as situate at Elere, Igbo Elere, Ibadan. Both plans – Exhibits A & Q – filed by the parties show the land as situate at Elere area, and more specifically as “along Lagos Express Road, Ibadan.” Exhibit J, the original receipt of purchase by the plaintiff describes the land as situate in Oke Oniponrin, Ibadan District. P.W. 10 the 84-year old whose evidence the trial Judge was very impressed by, confirmed the land in dispute to be situate at Elere area at Oke Oniponrin. So also did the 2nd defendant, whose plan showed the area in dispute to be at Elere area, who testified that the land is situated at Oniponrin. P.W.9 also called the area Oniponrin. As far as Elere Stream is concerned, the plaintiff testified that it was held a mile away from Elere village. These pieces of evidence show beyond any doubt that the various descriptions, interchangeably used, referred to the same area of land in Ibadan.

I agree with the appellants’ counsel that there is no justification for the contrary conclusion which the trial Judge arrived at.

It is also in respect of the land in dispute that the trial Judge made, correctly in my view, findings of fact as to the traditional evidence and acts of ownership in favour of the plaintiff. Accordingly, this appeal succeeds and the judgment of the court below is hereby set aside. In its place, the claims of the plaintiff for a declaration of title, trespass and injunction hereby succeed against the defendants jointly and severally.”

It awarded the plaintiff a nominal sum of N50.00 damages for trespass.

Against the judgment of the Court of Appeal, the defendants have now appealed to this Court, filing several grounds of appeal, with overlapping in some of them, though differently couched.

Before discussing the issues involved in this appeal, it is pertinent to recite at this stage albeit briefly, the facts in this case.

The plaintiffs case,as revealed in his pleadings is that in 1959 he bought a piece of land situate and lying at Elere, Igbo Elere, Ibadan, under native law and custom from Bello Adediran who had himself inherited the land from Odunlami, his father, and to whom it was granted absolute, by one Ago who acquired and settled in the area by conquest, after routing out the Ijebus and Egbas therefrom in the Gbanamu War. The Sale to him of the land in dispute by Bello Adediran was witnessed by a host of witnesses among whom were the plaintiff’s father and children of Bello Adediran. Immediately after the sale, the plaintiff went into possession of the land and planted therein, economic trees as well as other seasonal crops. When he was going abroad for further studies, he appointed one Mustafa Aderounmu as his caretaker of the land during his absence.

The defendants’ case is that the land in dispute was part of a large area of land originally settled in by one Aderounmu, the grandfather of the 2nd defendant, after Gbanamu War. On the demise of Aderounmu, the land devolved on his descendants who now constitute the Amubikan family of which the 2nd defendant claims to be the head. Since the settlement, members of the said family have been in successive and effective possession and control of the land, exercising maximum acts of ownership by farming thereon and also making absolute as well as temporary grants thereof, to different persons. That Belto Adediran was one of such people allowed by the 2nd defendant’s family to farm on a portion of the land as a customary tenant paying “Ishakole”, and that the land so granted to Bello Adediran falls outside the area of the land in dispute; that he has no right or authority to sell the land or any part thereof to any person. The 2nd defendant as head of Amubikan family sold the land in dispute to the 1st defendant. Henceforth, the plaintiff and the defendants shall be referred to as the respondent and the 1st and 2nd appellants respectively.

In the brief of argument filed by Mr. Adenipekun, learned counsel for the 1st appellant, he formulated 4 issues for determination while Chief Afe Babalola, S.A.N., learned Senior Advocate for the 2nd appellant formulated 8 issues in the brief he filed. These can conveniently be condensed into the following 3 issues –

1. Whether in the light of the evidence adduced, both oral and documentary, the land in dispute was not identified and proved with certainty required under the law;
2. Whether it was open to the Court of Appeal to ignore the brief filed by the 1st appellant; and
3. Whether it was open to the Court of Appeal to grant to the respondent a declaration of title when that was not what he asked for in the trial court.

It was the submissions of learned counsel for the 1st and the 2nd appellants respectively that the evidence adduced by the respondent both oral and documentary, not only failed to identify and prove the land in dispute with definitive certainty, but was so contradictory and therefore unreliable to sustain any finding resulting therefrom. The two learned counsel made references to portions of the oral testimonies of respondent’s Witnesses, particularly P.Ws. 6, 8, 9, 10, 11 and 12 as regards the location and identity of the land in dispute and submitted that this was at variance with the respondent’s pleadings. The following cases were cited to support the submissions:- Baruwa v. Ogunshola W.A.C.A. 159 ; Udofia v. Afia 6 W.A.C.A. 216; Amata v. Modekwe 14 W.A.C.A. 580 at 582-583; Epi v. Aigbedion (1972) 10 S.C. 53 at 60; Udofe v. Aqusisua (1973) 1 ALL N.L.R. (Pt.1) 87 at 95 and Oke & Ors. v. Eke & Ors. (1982) 12 S.C. 218 at 248.

In his brief, learned counsel for the respondent submitted that the land in dispute had been sufficiently identified and ascertained by the evidence adduced by the respondent. In that regard, learned counsel referred to Exhibit ‘O’, the survey plan tendered by the respondent, in which the land in dispute was verged blue while the same was verged yellow in Exhibit “Q”, the survey plan of the 2nd appellant. Learned counsel also referred to portions of oral evidence of the respondent/plaintiff, P.W.5, P.W.8, P.W.9, P.W.10, P.W.11, P.W.12, 2nd appellant/defendant and D.W.3 to further buttress his submission. It was his contention that since all the parties to the dispute were agreed on the identity and area of the land in dispute, it was not even necessary fur them to file Survey plans, and that the fact that the area in which the disputed land is located was ascribed different names by the parties did not weaken the respondent’s case. In support of the submissions the cases of Akpagbue v. Ogun (1976) 6 S.C.63; Aromire & Ors. v. Awoyemi (1972) 1 All N.L.R. (Pt.1) 101 at 113 and Ezeudu v. Obiagwu (1986) 2 N.W.L.R. (Pt.21) 208 were cited and relied upon.

As rightly stated by the learned trial Judge in his judgment, a claim for ownership of land may be proved by any of the five ways stated and restated in numerous decisions of this Court. See Sunday Piaro v. Chief W. Tenalo (1976) 12 S.C.31; Idundun v. Okumagba (1976) 1 N.M.L.R. 200. One of such ways is by adducing traditional evidence – See Abinabina v. Chief Enyimadu (1953) A.C.207. In the present case both parties adduced traditional evidence to support their respective claims The learned trial Judge reviewed and assessed the evidence and preferred the evidence adduced by the respondent to that of the appellants. It is clear from the evidence accepted that the land in dispute was sufficiently identified. The appellants also admitted that the respondent was in possession of the said land, but only claimed that the respondent was their customary tenant paying tribute or “Ishakole” to them, an assertion which the learned trial Judge rejected. The 2nd appellant and the respondent filed plans of the land in dispute. The 2nd appellant’s plan was Exhibit “O” while that of the respondent was Exhibit ‘O’. Also the 1st appellant’s deed of conveyance of the land in dispute was admitted as Exhibit ‘P’ and attached to it was a survey plan of the land. A comparison of Exhibits O, P and Q plus the oral evidence shows that the exact identity of the land was not in dispute between the parties.

The 1st appellant in his evidence said –

“The area marked blue in Exh. O approximately reflects the area of the land in dispute. The area marked blue in Exh. O the land in dispute belongs to me.”

The 1st D.W. also said in his evidence:-

“The area verged yellow in Exh. O is the land in dispute is also verged blue in Exh. O.”

1st D.W. was the 2nd appellant’s witness and the surveyor that produced Exhibit Q.

By the evidence highlighted (supra), the area verged “blue”-in Exhibit, yellow in Exhibit “Q”, and red in Exhibit P had been related to themselves and referred to the land in dispute. Taking into consideration this documentary evidence and the oral testimonies – extensively referred to by learned counsel for the respondent in his brief there seems to me to have been strong evidence upon which the learned trial Judge could have properly concluded that the land in dispute between the parties had been sufficiently identified. In a portion of his findings on the evidence adduced, the learned trial Judge said:-

“I am satisfied that the land, the sale of which was being negotiated in Exh. “L” and “R” is a piece of land at Alate Village and not Elere Stream, Igbo Elere, which is the subject- matter of the present action. In any event I do not find whatever admission that may be implied from the contents of Exh. “L” sufficiently strong to counteract the evidence as to traditional history and acts of ownership adduced in this case.”

The fact that different names were ascribed by the parties and their witnesses to the area where the land in dispute is located did not, in the circumstances of this case weaken the case of the respondent. See Aromire & Ors. v. Awoyemi (1972)1All N.L.R. (Pt.1) 101at 113. Where the parties, by the evidence adduced, both oral and documentary, are ad idem, on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming.

Having regard to the excerpts from the evidence and some specific findings of facts by the learned trial Judge quoted earlier in this judgment, in my view, it was a misdirection in law on his part to say that the land in dispute was not identified and the Court of Appeal was therefore perfectly justified in interfering with that conclusion and replacing the same by the findings that-

“The plaintiffs pleadings refer to the land as situate at Elere, Igbo Elere, Ibadan. Both plans – Exhibits O and Q – filed by the parties show the land as situate at Elere area, and more specifically as along “Lagos Express Road, Ibadan.” Exhibit J, the original receipt of purchase by the plaintiff describes the land as situate in Oke Oniponrin, Ibadan District. P.W.10, the 84-year old whose evidence the trial Judge was very impressed by, confirmed the land in dispute to be situate at Elere area at Oke Oniponrin. So also did the 2nd defendant, whose plan showed the area in dispute to be at Elere area, who testified that the land is situated at Oniponrin. P.W.9 also called the area Oniponrin. As far as Elere Stream is concerned, the plaintiff testified that it was half a mile away from Elere village. These pieces of evidence show beyond any doubt that the various descriptions interchangeably used, referred to the same area of land in Ibadan.”

The Court of Appeal had a duty to interfere with and correct erroneous conclusions reached upon by the learned trial Judge where the facts found by him were wrongly applied to the circumstance of the case; or where the inferences drawn from those facts were erroneous. See Brantuo v. Poku W.A.C.A. 210; Ibongo v. Usanga (1982) 5 S.C. 103; Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at page 376 where Lord Mortion of Henryton, expounding the law said-

“…in cases where there is no question of credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proven facts, an appeal court is generally in a good position to evaluate the evidence as the trial Judge, and ought not to shrink from that take though it ought, of course, to give weight to his opinion.”

See also Fabumiyi & Anor. v. Obaje & Anor. (1968) N.M.L.R. 242 where this Court also dealt with the circumstances and situations in which a court of appeal could do what the trial court had failed to do.

It is pertinent to state that there was no appeal against the findings of fact by the trial court identifying the land in dispute and its sale.

This disposes of grounds 2, 4, 5, 6 and 8 of the 1st appellant’s Grounds of Appeal, and grounds 3, 4, 5, 6, 7 and 9 and also 5, 6 and 8 of the 2nd appellant’s Original and Additional Grounds of Appeal respectively. They are accordingly dismissed.

Learned Counsel for the appellants complained that the brief of arguments filed by the 1st appellant was overlooked by the Court of Appeal. Though this may appear to be so, the printed record clearly showed that his counsel, Adenipekun, Esq., was accorded oral audience in open court by the Court of Appeal. The purpose of filing written brief is to assist learned counsel on the opposing sides to understand and identify the issues to be settled by the appellate court so that they can limit their arguments and submissions to those issues. It will also assist the Court of Appeal to know at first sight the case of each party. It is no doubt a procedure devised to save time and accelerate disposal of cases. This is however not a curtailment of the Court of Appeal’s power to invite parties to make oral submissions in place of written briefs. After all, the Court of Appeal has power, both under the Court of Appeal Act, 1976 and the Court of Appeal Rules, 1981, to waive compliance with the provision of any part of the Rules. See section 16 of the Court of Appeal Act, 1976, Rule 11 of Order 6 and Rule 3 of Order 7 of the said Rules, respectively. The principle of fair hearing as enshrined in section 33(1) of the 1979 Constitution, has not in my view, been violated by the procedure adopted as the 1st appellant was accorded hearing orally through his counsel. Courts of Appeal are established to correct erroneous decisions made by the courts below them in order to avoid miscarriage of justice. In the instant case failure of the Court of Appeal to advert to the written brief filed, though a contravention of the rules of procedure, can be treated as a mere procedural irregularity and not substantial enough to warrant interference with the decision of the Court of Appeal. See Alhaji Ahmadu v. Alhaji Salawu (1974) 11 S.C. 43.

The third issue in this appeal is related to the relief granted by the Court of Appeal to wit – a declaration of title to the land in dispute. It was the submission of both learned counsel for the 1st and the 2nd appellants respectively that the Court of Appeal had no jurisdiction to grant to the respondent a declaration of title to the land in dispute in view of the provisions of the Land Use Act, 1978, particularly sections 37,40 and 41 of the said Act. It was submitted that the respondent’s Amended Statement of Claim prayed for a declaration that he is entitled to a certificate of occupancy (customary) in respect of the farmland situate, lying and being at “Elere Stream, Igbo Elere, Ibadan” which is not the same as remedy for a declaration of title under native law and custom granted to the respondent by the Court of Appeal.

In reply, learned counsel for the respondent argued that the issue of the application of the Land Use Act was not before the High Court, nor was it raised in the Court of Appeal.

I am in total agreement with the submissions and contention of learned counsel for the respondent on this issue. The issue of Land Use Act, 1978 was not raised in the trial High Court, nor was it raised in the Court of Appeal. No leave was sought for and granted by this Court to raise the issue here. The complaint is therefore nothing but a mere misconception. See John Ikinbor Dweye & 2 Ors. v. Joseph I. Iyomahan & 3 Ors. (1983) 8 S.C. 76 where the applicability of the Land Use Act, 1978 was first sought to be raised before this Court as an issue, and Uwais, J.S.C., delivering the lead judgment, said at pages 83-84:-

“It has been well established by a line of authority starting with Abinabina v. Enyimadu, 12 W.A.C.A. 171 through to Ejiofoddmi’s case (supra) that no substantial point which has not been taken in the Courts below will be allowed to be raised for the first time before this Court except under special circumstances. It is true that the point of law now being raised by the appellants in the ground of appeal argued was not canvassed in either the High Court or the Federal Court of Appeal.”

It is true that a court cannot give a relief not asked for by a party unless it is consequential. The claim by the respondent is for a declaration of a customary title to the land in dispute. The Court of Appeal granted the respondent’s request but in making its order it granted to the respondent what appears to be absolute title. The Land Use Act, 1978 has vested absolute ownership of the land in each State in the Governor of that State and any person other than the Governor can only have possessory title – be it statutory or customary.

The Court of Appeal is deemed to have judicial notice of the Act. See Section 72(1)(b) of the Evidence Act. If the Court of Appeal’s attention had been adverted to it, it would have granted the respondent the appropriate relief in conformity with what it has actually decided and intended. What happened is an accidental slip which the Court of Appeal could have amended, as doing so would not occasion any miscarriage of justice. See: Hotton v. Harris (1892) A.C. 547 at 5 Ors and Anyasinti Umunna & 5 Ors. v. Animudu Okwuraiwe (1978) 6-7 S.C.1 at p.9. Since the Court of Appeal has not done that, this Court, exercising its inherent powers and the powers conferred on it by Section 22 of the Supreme Court Act, 1960, hereby amend the final orders of the Court of Appeal to be as follows:-

The appeal succeeds and the judgment of the trial court is hereby set aside. The claims of the plaintiff for a declaration that he is entitled to a certificate of customary right of occupancy, trespass and injunction hereby succeed.

See Asiyanbi v. Adeniji (1967) 1 All N.L.R. 82; Harrison v. Harrison & Ors. (1955) 1 All E.R. 185 and In re Swire Mellor v. Swire (1885) 30 Ch.D. 239, particularly at 246 where Cotton, L.J. said –

“It appears to me therefore, that if it is one made out that the order, whether passed and entered or not, does not express the order actually made, the court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.”

This Court will not allow an order inadvertently made by the Court of Appeal to stand which does not express what that Court has actually decided and intended in its judgment.

Save for this minor amendment of the accidental slip to reflect what the Court of Appeal actually decided and intended, the appeal fails and is accordingly dismissed with N500.00 costs to the respondent.

ESO, J.S.C.: I have had the honour of a perusal in draft of the judgment which has just been delivered by my learned brother, Wali, J.S.C. The plaintiff lost in the trial court in his claim for declaration of title under Native Law and Custom; damages for trespass and injunction restraining further acts of trespass. It was the decision of the trial court that the plaintiff failed to establish the area and extent of the land to which his claim relates.

In the Court of Appeal, after an exhaustive review, Uche Omo, J.C.A., with Aikawa and Onu, JJ.C.A., concurring allowed the appeal of the plaintiff. The Court held that the descriptions were sufficient and that there was no justification for the conclusion of the trial court. The appeal was allowed.

I have gone through the reasoning of my learned brother, Wali, J.S.C., in regard to the submissions of learned counsel in this Court and as I am in complete agreement, there is nothing I would wish to add.

I agree with the conclusion of my learned brother. The appeal is dismissed save for the minor amendment of the accidental slip which my brother, Wali referred to.

I abide by all the orders of my brother, Wali, J.S.C., in the judgment.

---

SC.125/1987