Abisoye Ataloye & Ors V. Jumoke (Nee Tapere Jegede) (2016)
LawGlobal-Hub Lead Judgment Report
JAMES SHEHU ABIRIYI, J.C.A.
This appeal is against the judgment delivered on 6th August, 2013 in the High Court of Ondo State sitting at Akure. The Appellants were the Plaintiffs in that Court. The Respondent and one other person now late were the Defendants/Counter-claimants.
The claim of the Appellants in the lower Court was for the following:
A. A declaration that the plaintiffs are entitled to the statutory right of occupancy on the land known as Fajola Eleyoowo land bounded on the top by Oke-Oge. Odofin farmland, at the right by Olojugba farmland.
B. An order of the Court setting aside layout plan in the name of Jegede Abidakun Tapere no Ak N/A.Ur..P.O/173/10 and any survey plan made by any person or group of person (sic) and/or by the defendants.
C. (N5,000,000) General damages for trespass committed against the plaintiffs’ land.
D. A Perpetual Injunction restraining the defendants, their servants, agents or privies from committing any further acts of trespass on the said piece or parcel of plaintiffs’ land,
?The Respondent on his part counterclaimed against the
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Appellants.
Reproduced immediately hereunder is the counterclaim of the Respondent:
(1) A Declaration that the 1st defendant and members of his family are entitle (sic) to the Customary Right of Occupancy in respect of the land at Eleyoowo covered by perimeter survey plan NO OD/1748/2010/009 measuring 4.966 Hectares with an Approval Layout NO: AKW/AURPO/L/173/10
(2) AN ORDER of perpetual injunction restraining the plaintiffs, their privies, agents or any person receiving authority from them trespassing unto the Defendants land located at Eleyoowo in Akure North of Ondo State covered by perimeter survey plan NO: OD/1748/2010/009 measuring 4.966 Hectares with an Approval Layout NO: AKW//AURPO/L/173/10
(3) Cost of the suit to be assessed
?The facts of the case include the following: According to the Appellants their ancestor settled on the land in dispute from time immemorial. Population of the settlers grew later and the land was shared.
They were surprise when in 2010 the Respondent went into the land to carry out survey on a portion of the large expanse of land without the authority of the Appellants. That apart from the portion
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of land given to the 1st Respondent to farm which is now the subject of litigation no other part of Eleyoowo Community land is occupied by any of Jegede’s sons and daughters.
The Appellants tendered various documents (Exhibits P1-P6).
On the contrary, the Respondent stated that the land was founded and disvirgined as thick forest by Jegede Asosonyi the father of the Respondent. The Respondent inherited the land from his father in 1955.
Since then, nobody has challenged him on the land. It was the 2nd Appellant who trespassed into the Respondent’s land and was reported by the Respondent to the police. The Appellants in a ploy proceeded to institute this action to foil possible police investigation and prosecution.
After considering the evidence adduced at the trial and addresses of learned counsel for both parties, the lower Court dismissed the claim of the Appellants and entered judgment in favour of the Respondent.
Miffed by the decision, the Appellants approached this Court by notice of appeal dated 12th September, 2013 and filed the same day. With leave of this Court, the Appellants filed an amended notice of appeal dated 30th
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December, 2013 and filed the same day but deemed duly filed and served on 28th May, 2014. The amended notice of appeal contains fifteen (15) grounds of appeal from which the Appellants presented the following issues for determination.
1) Having regard to Counter-Claim as an Independent action and the fact that the Counter-Claimants pleaded settle/grant as their root of title, whether or not the trial Judge was not in error when he failed to make findings on Proof by settlement/grant. Ground 10.
2) Having regard to Plaintiffs traditional evidence at the trial whether or not the trial Judge (sic) approach in expressing unbelief and describing PW1 (sic) evidence as a convoluted history is correct. Ground 2 & 7.
3) Having regard to the Plaintiffs pleadings evidence led at the trial and the DW3 – DW4 evidence under Cross-Examination supporting the Plaintiffs’ Case whether or not the trial Judge was right when he held that the Plaintiffs did not prove their traditional evidence as required by law. Grounds 4, 5, 6 and 11.
4) Having regard to pleadings and evidence led at the trial whether or not the trial Judge was right in granting the
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Counter-Claimant’s Claim and dismissing the Plaintiffs’ Claim. Grounds 8, 12, 13, 14 and 15.
5) Whether or not the learned Judge was right when he suo motu raised the issue on Communal Ownership, resolved it in favour of the Respondents without the parties addresses on it. Ground 1.
6) Having regard to Plaintiffs pleadings and evidence led at the trial and the authorities relied upon by the trial Judge on communal ownership whether or not the trial Judge was not in error when he held that the Plaintiffs’ pleaded Communal Ownership but gave evidence on individual ownership. Ground 3.
The Respondent adopted the issues formulated by the Appellants.
In the Appellants’ brief which learned counsel for the Appellants adopted it was contended that the Respondents pleaded settlement and grant as their root of title. We were referred to Paragraphs 4, 6, 8, 9, 26 and 27 of the statement of defence and counterclaim.
It was submitted that the evidence of DW3 on grant clearly contradicted the averments in the above paragraphs of the statement of defence and counterclaim. We were referred to Ozibe & Ors v. Chief Aigbe (1977) 7 SC 1, Chief Ibanga
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& Ors v. Chief Usange & Ors (1982) 5 SC 103 at 124 and Shija v.Fari (1986) 2 NWLR (Pt 21) 147.
It was submitted that the law is now settled that where there is a dispute involving land and from the evidence of the parties title is made an issue, the title must be proved. It was submitted that while the lower Court applied this principle to the Appellant’s case, it failed to do so in respect of the counterclaim of the Respondents. We were referred to page 142 of the recording of appeal.
It was submitted that the counterclaim is an independent action that must be proved on equal strength. Reliance was placed on Musa v. Yusuf (2006) 6 NWLR (Pt. 977) 434 at 460.
On issue 2, it was contended that the lower Court at page 147 of the record of appeal in the judgment, disbelieved the evidence of traditional history given by the PW1 but that it is settled law that evidence of tradition is not open to assessment from the usual point of view of credibility of witnesses. It was submitted that where such evidence is called by both parties to the dispute, the correct yardstick as to which of them is more probable is to refer to facts within living
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memory. It was submitted that in such evidence demeanour of witnesses is of no guide. It was submitted the lower Court stated the principle correctly but ended up by discrediting the appellants’ witness for his omission to give certain evidence. We were referred to Oloriode & Ors v. Oyebi & Ors (1984) 5 SC 1 at 17-18.
On issue 3, learned counsel for the Appellants referred the Court to paragraphs 1, 18, 20-23, 25, 29-31, 38, 42-45 of the statement of claim and submitted that from those paragraphs it is clear that the lower Court did not consider the Appellants’ pleadings when it held that there was no evidence of who founded the land.
It was submitted that the lower Court was wrong to hold that mere incidence of marriage is not enough to entitle the husband to what belongs to the wife.
It was further submitted that a substantial part of the evidence of DW1 and DW4 under cross-examination supported the plaintiffs’ case.
It was submitted that the lower Court ought to have believed the evidence of the Appellants on how the Respondent entered the land.
It was submitted that the evidence in chief of DW1 and DW4 were of no use having
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been discredited by the evidence under cross-examination of the root of title. It was submitted that where the evidence of the Respondent supports the Appellants’ case, this is an admission. Obmiami Brick & Stone Nig. Ltd v. A. C. B. Ltd (1992) 3 NWLR (Pt. 229) 260 at 265 and Z. P. Industry Ltd v. Samotech Ltd (2007) 16 NWLR (pt 1060) were cited in support.
It was submitted that the Appellants are descendants of Sao. So the lower Court was wrong in stating that the Appellants ought to have called Sao family.
It was submitted that the principle guiding proof of traditional evidence in land matters is different from the principle guiding the proof of Custom used by the lower Court. The case of Lipade v. Sonekan (1995) 1 NWLR (Pt. 3) 374 relied upon by the lower Court it was submitted was on chieftaincy and not land matter.
It was submitted that the evidence of PW1 on paragraphs 3-8 was not challenged and they were on acts of recent possession. It was submitted that where a party relies on traditional evidence in proof of his title to land, he is not precluded from supporting his case with evidence of recent acts. We were referred to Nwokorobia v.
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Nwogu (2009) 10 NWLR (Pt 1050) 553 at 558 and Okwarannonobi v. Mbadugba (2013) 17 NWLR (Pt 1383) 255. The evidence of traditional history given by the Appellants was sufficient proof it was submitted.
On issue 4, it was submitted that the lower Court was in error in granting the counterclaim and dismissing the Appellants’ claim.
The respondent, it was argued, relied on settlement/grant as her root of title.
It was submitted that settlement and grant cannot co-exist as root of time and that the lower Court never saw these fundamental lapses.
It was submitted that the Respondents never proved any of the roots of title relied upon.
It was contended that although the lower Court applied the law correctly to the case of the Appellants at page 141-142 of the record of appeal the law apparently changed when the lower Court came to consider the case of the Respondent.
It was submitted that the imaginary scale of justice ought to have applied to both parties since the Respondent counterclaimed.
It was submitted that where the Respondent’s root of title failed the proper order to make was one dismissing the counterclaim.
?It was submitted
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that there were material contradictions in the evidence presented by the Respondent.
It was submitted that the lower Court’s reliance on acts of possession and ownership as evidence of title to land to enter judgment in favour of the Respondent was contrary to law.
It was submitted that a party relying on acts of possession and ownership as evidence of title to land must show that such acts not only extend over a sufficient length of time but that they are numerous and also positive to warrant the inference of exclusive ownership. We were referred to Anyanwu v. Mbara (1992) 5 NWLR (Pt 242) 386.
It was submitted that failure to prove grant meant that the counterclaim of the Respondent failed.
On issue 5, it was submitted that the lower Court was wrong to have suo motu raised issue on the Appellants’ capacity and resolved it in favour of the Respondent without giving the Appellants an opportunity to address the Court.
It was submitted that communal ownership or the capacity of the Appellants was never raised or canvassed by the parties and the lower Court was wrong to have raised and acted upon it against the Appellants.
?It was
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submitted that the failure to invite the parties to address the Court is a breach of the appellants’ right to fair hearing. We were referred to Oriji v. Oroji (2011) 17 NWLR (Pt 1275) 113 at 117.
On issue 6, it was submitted that the lower Court was in error when it applied communal ownership of land to all facts in deciding the Appellants’ case even though communal ownership was never pleaded in all the relevant paragraphs of the Appellants’ pleadings.
It was submitted that the word “community” was a mere misnomer which was not intended to be used in the way it appears in the capacity in which Appellant sued.
On issue 1, the Respondent submitted that she had established before the lower Court how she came to own the land in dispute. It was submitted that Respondent called DW3 as a successor – in-title to her grantor of the land in dispute.
The Respondent it was submitted, proved grant as her root of title.
It was the contention of the Respondent that she did not plead settlement as her root of title as contended by the Appellants; rather she pleaded settlement as the facts of the purpose to which the land is meant.
?It was
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submitted that the Appellants failed to rebut the presumption of ownership under Section 143 of the Evidence Act 2011 which was in favour of the Respondent when the Appellants could not prove a better title to the land in dispute.
It was submitted that the Appellants did not deny the charge in the statement on oath of DW5 that the 2nd and 3rd Appellants and one Pastor Kole Arowolo entered the farmland of the 1st Respondent at the lower Court and damaged cash and arable crops such as cocoa and plantain which was actually the basis of this suit at the lower Court.
It was submitted on issue 2, that the lower Court approached the Appellants traditional evidence correctly and came to the correct conclusion on the evidence before it which it disbelieved due to copious contradictions.
It was submitted that the Appellants’ traditional evidence failed and the lower Court would find it difficult to act on it to grant the Appellants’ claim.
On issue 3, it was submitted that the lower Court correctly held that the plaintiffs did not prove their traditional evidence as required by law. It is the primary duty of the plaintiff to prove his claim and
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unless he does this, he cannot succeed. There may be weaknesses in the case of the defence, but this will not derogate from the principle of the burden on the plaintiff to prove his case first. We were referred to Nkwo v. Iboe (1998) 7 NWLR (Pt 558) 354 at 363. It was submitted that the Appellants’ evidence of traditional history failed to meet the requirements of the law which is that the traditional history must be cogent, punctual and reveal a settled ancestral devolution of the land in dispute before the Court can accept it. The case of Ezekwesili v. Onwuegbu (1998) 3 NWLR (Pt 541) 217 at 221 was cited in support.
It was submitted that the lower Court approached the Appellants’ traditional evidence rightly when it held that the Appellants’ evidence did not fulfill the requirement of the law.
?On issue 4, it was submitted that the appellants’ view with respect to the Respondent’s root of title was misconceived as what the Respondent pleaded and proved at the trial was a grant as her root of title and not settlement/grant as being erroneously argued by the Appellants in their brief. We were referred to paragraph 3 at page 154 of the record of
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appeal. That the considered reasons by the lower Court are stated in pages 145 – 154 of the record of appeal.
On issue 5, it was submitted by learned counsel for the Respondent that the lower Court did not suo motu raise the issue of communal ownership and resolve it in favour of the Respondent. The Court was referred to paragraph 1 of the statement of claim in which the Appellants pleaded that they are representatives of Eleyowo Community and maintain the action for themselves and on behalf of Fayola Eleyowo community.
It was submitted on issue 6 that it is not correct that the lower Court was in error when it applied communal ownership of land to the case of the Appellants as this was the pleading of the Appellants at the lower Court and which is equally in issue.
In the resolution of the issues for determination I will begin with the last two issues (6 and 5) and determine them together.
?The main object of pleadings is to ascertain with as much certainty as possible the various matters that are in dispute between the parties.
The parties are therefore compelled to define accurately and precisely the issues upon which the case between
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them is to be contested to avoid element of surprise by either party. See Ukaegbu v. Ugoji (1991) 6 NWLR (Pt 196) 127 and Buhari v. Obasanjo (2005) 2 NWLR (Pt 910) 241.
In paragraph 1 of the statement of claim the Appellants pleaded thus:
“1. The plaintiffs are representative (sic) of Eleyowo Community of Oba-Ile in Akure North Local Government of Ondo State and maintain this action for themselves and on behalf of Fajola Eleyowo Community.”
It is contended by learned counsel for the Appellants that communal ownership of the land was never pleaded in all relevant paragraphs of the statement of claim. He did not say which are the relevant paragraphs of the statement of claim. On the face of Paragraph 1 reproduced above this argument is futile. I therefore reject this argument. There is no basis for it.
It was further argued by learned counsel for the Appellants that the word community contained in Paragraph 1 of the statement of claim reproduced above is merely a misnomer. Black’s Law Dictionary 8th Edition at page 1021 defines misnomer as a mistake in naming a person, place or thing especially in a legal instrument etc. Since the capacity
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in which the Appellants sued was not corrected if it was a misnomer that mistake cannot be corrected in the address of learned counsel in this Court. In my view, that suggestion in the address of learned counsel is an afterthought. This after thought cannot be used to contend that the lower Court was in error to apply communal ownership or that communal ownership was not pleaded. It was pleaded in very clear terms by the Appellants.
It is not correct in my view that the lower Court was in error in applying communal ownership since it was pleaded.
It is not correct as learned counsel for the Appellants further contended that the Appellants were denied fair hearing, the issue of communal ownership having been raised and canvassed by the lower Court suo motu. This is because the lower Court did not suo motu raise the issue of communal ownership.
In the circumstances issues 6 and 5 are hereby resolved in favour of the Respondents.
In my view, issues 2 and 3 can be conveniently taken together too.
?In an action for declaration of title to land based on communal ownership there is need for the plaintiff to plead facts showing how the land in
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question became communal property and also the identity of the communal ancestor ought to be established. See Echi v. Nnamani (2000) 5 SC 62 at 78.
In paragraph 3 of the statement of claim the Appellants pleaded thus:
“3. The plaintiffs say that their ancestor settled in the land in dispute from time immemorial.”
Learned counsel for the Appellants’ argument that the traditional evidence of the PW1 was wrongly rejected cannot be accepted by the Court. To start with the Appellants nowhere pleaded the name of the ancestor who founded or settled on the land. Secondly the only witness called by the Appellants in his statement on oath merely repeated the deposition in paragraph 3 of the statement of claim reproduced above without naming their ancestor who settled on the land from time immemorial. Thirdly the PW1 in his statement on oath stated that all the facts deposed to were within his personal knowledge. But under cross-examination he said the story he told in the statement on oath was what his mother told him. Fourthly, although the PW1 had earlier deposed in the statement on oath that it was in 2010 that the daughter of the 1st Respondent
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trespassed into the land in dispute, under cross-examination, he stated as follows:
“The 1st defendant started farming on the land in dispute at Eleyowo about 25 years ago. He was farming at Igbo Owa near a place called Osi before now. He begged for land and we gave him. He did not and has not been paying anything to us because she is taken as a member of the family.”
It cannot be correct to say on the above evidence of the PW1 that the lower Court wrongly rejected his evidence. I am in agreement with learned counsel for the Respondent that the lower Court rightly rejected the evidence led by the Appellants as their case was hinged only on the evidence of PW1.
I have looked at Paragraphs 1, 18, 20-23, 25, 29-31, 38, 42-45 of the statement of claim and paragraphs 3-8 of the statement on oath of the PW1 which the Appellants’ counsel has referred us to and I do not agree with him that the lower Court erred when it held that there was no evidence of who founded the land.
?I am in agreement with learned counsel for the Respondent that the primary duty lies on the plaintiff to prove his claim and that unless he does so, he cannot succeed. There
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may be weaknesses in the case of the defence but this will not derogate from the principle of the burden on the plaintiff to prove his case first. See Nkwo v. Iboe (1998) 7 NWLR (Pt. 558) 354 at 353.
On the pleadings and evidence led by the Appellants, the Appellants’ evidence of traditional history has not been established. The finding of the lower Court that the Appellants failed to establish their case cannot be faulted.
In the circumstances issues 2 and 3 are also resolved in favour of the Respondents.
I will take issues 1 and 4 together.
Learned counsel for Appellants on the two issues contended that the Respondent pleaded grant and settlement and that both cannot co-exist.
That in any case the evidence of DW3 on grant contradicted the defence.
The Respondent on her part argued that what the Respondent pleaded and proved was a grant and not settlement. He further argued that the Respondent called DW3 successor-in-title to her grantor.
Paragraphs 24-27 of the Respondents statement of defence and counterclaim reproduced immediately hereunder read as follows:
“24. The Defendants/Counter-claimants further state that
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when Ugele land became congested for farming activities, Jegede Asosanyi the father of the first Defendant being a hunter discovered as a thick virgin forest, Eleyoowo land during a hunting expedition and subsequently contacted Oba Ojijigogun for the use of the land.
25. The Defendats(sic)/Counter-claimants avers that Oba Ojijigogun referred Asosanyi Jegede to Oba Otutubiosun of Oba-Ile being the custodian of the land in question.
26. The Defendants/Counter-claimants aver that Oba Otutubiosun granted the Use of the land to Asosanyi Jegede upon yearly payment of 1 calabash of palm wine and 10 shillings for nine years, thereby making Asosanyi Jegede the first to settle on Eleyoowo land.
27. The Defendants/counter-claimants aver that Oba Otutubiosun granted absolute and radical title to Eleyoowo land to Asosanyi Jegede, 10th year after he discovered the land.”
It is evident from paragraphs 24-27 reproduced above that the Oba of Oba-Ile granted the land to the Respondent’s family. This was confirmed by the DW3 called by the Respondent. DW3 is the current ruler of Oba-Ile. In his statement on oath the DW3 said that the Respondent’s family and
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other families were granted outright grants. Under cross-examination, the evidence of the DW3 was not in anyway discredited. It remained solid as a rock. I agree with learned counsel for the Respondent that DW3 was successor-in-title to the ruler of Oba-Ile who granted the land to the Respondent’s family.
In my view, the lower Court wrongly rejected the evidence of the DW3.
I am in agreement with learned counsel for the Respondent that on the facts pleaded in Paragraphs 24-27 of the statement of claim and evidence of DW3 that the Respondent pleaded and proved grant.
Furthermore, the Respondent pleaded and led evidence to the effect that she had been in possession of the land which she inherited since 1955. See the written statement on oath of DW5. See also paragraph 34 of the statement of defence and defence to counterclaim.
It is the law that the person in possession is presumed to be the owner of the thing. The burden of proving that he is not the owner is on the person who affirms that he is not the owner. See Okhuarobo v. Aigbe (2002) 9 NWLR (Pt 771) 29 and Oyadare v. Keji (2005) 7 NWLR (Pt 925) 571.
The Appellant’s witness under
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cross-examination admitted that the Respondent had been in possession of the land for 25 yrs. The 25 years was short of the period the Respondent pleaded and proved she had been in possession since she inherited the land in 1955. On the evidence led by the Appellants they have not shown that the Respondent is not the owner of the land.
In my view the Respondent has proved the counterclaim in accordance with her pleadings. She is entitled to succeed on the strength of her case and on the preponderance of evidence led.
In the circumstances issues 1 and 4 are hereby resolved in favour of the Respondent.
All six issues having been resolved in favour of the Respondents, the appeal in my view deserves to be dismissed.
It is accordingly dismissed by me. The judgment of the lower Court is hereby affirmed by me.
Respondent is awarded N50,000 costs to be paid by the Appellants.
Other Citations: (2016)LCN/8748(CA)
