Adebayo Alade & Anor V. Salami Ogundokun & Anor (1992)
LawGlobal-Hub Lead Judgment Report
RABIU DANLAMI MUHAMMAD, J.C.A.
The Plaintiffs’ claim against the Defendants is for:-
“(a) Declaration that as the Customary owners the Plaintiffs are entitled to statutory right of occupancy in respect of the plaintiffs’ piece or parcel of land situate lying and being at Aroro, Igbo-Elepe area, Ile-Ogo, via Iwo in Oyo State, the plan of which will be filed later in court.
(b) N2, 000 being general damages against the Defendants jointly and severally for trespass committed on the said land sometime in March 1982. The trespass still continues.
(c) Injunction restraining the Defendants, their servants, agents and/or privies, from further acts of trespass on the said land.”
Pleadings were ordered filed and exchanged. Nine witnesses including the 1st and 2nd plaintiffs testified in support of the plaintiffs’ claims, while six witnesses including the two defendants testified for the defence. After addresses by learned counsel for the parties, the learned trial Judge, in a reserved judgment dismissed the plaintiffs’ claim as “wholly misconceived and unproved”. He also awarded N1, 500 costs in favour of the defendants.
It is against this judgment that the plaintiffs have appealed to this court upon three original grounds of appeal and with the leave of the court filed four additional grounds of appeal. The grounds of appeal shorn of the particulars are:-
1. ORIGINAL GROUNDS
GROUND 1
The decision is against the weight of evidence.
2. GROUND 2
Error in Law:
Particulars will be furnished when Record of Appeal is received.
3. GROUND 3
Further grounds of appeal will be filed on receipt of Records of Appeal.
4. ADDITIONAL GROUNDS OF APPEAL
GROUND 1
The learned trial Judge erred and misdirected himself in Law when he held, page 45 lines 29-32, page 47 lines 1 – 6, ‘while I agree that 3rd P.W. (Delemo) is the eldest member of the second defendant’s family, I do not believe that he is the head of the family. There is the abundant evidence that he does not reside at Ile-Ogo and did not even attend the funeral ceremony of his father. I do not believe that members of his family can retain a person of his character as their head of family. He appears to me to have been procured by the plaintiffs as an outcast of his own family to give evidence against his family interest’ and therefore came to a wrong decision which caused a miscarriage of justice.
5. GROUND 2
The learned trial Judge erred in law when he held at page 47 lines 28-33, page 48 lines 1-10 ‘surely if land at Ile-Ogo is stool land and there are five ruling houses, one ruling house cannot claim an exclusive right to title over all land there. If this court awards title to one of the ruling houses; that is, to Akinola Ruling House, from which the first plaintiff emerged, what will be left for the other ruling houses? By its nature, a Statutory Right of occupancy is a State guaranteed title to land: page 40 lines 4-10. It is for this reason that I accept the submission of the learned counsel for the defendants that if the plaintiffs’ case is that the land is stool land then they should have sued in representative capacity and with the consent of all other ruling houses. In so far as this action is brought in a personal capacity it is wholly misconceived. And thereby came to a wrong decision which caused a miscarriage of justice.
6. GROUND 3
The learned trial Judge erred in law in dismissing the appellants’ claim when the respondent relied on partition in their pleadings, but failed to prove such a partition nor gave such evidence and therefore came to a wrong decision which caused a miscarriage of justice.
7. GROUND 4
The learned trial Judge erred in law when he held at page 49 lines 4-6 that ‘the plaintiffs not being in possession cannot therefore be granted Certificate of Occupancy.’ And thereby came to a wrong decision which caused a miscarriage of justice.”
Learned counsel for the parties filed and exchanged their respective briefs of argument. In their brief, the appellants identified three issues for determination. These are:-
(i) Whether there was proper evaluation of the evidence proferred by the plaintiffs and their witnesses in contrast to those of the defendants; from the learned trial Judge’s summing-up contained at pages 44-47
(ii) Whether the land at Ile-Ogo was held by successive Baales as communal heads in trust for the people.
(iii) Whether it was proper for the learned trial Judge to have set out in detail to adversely highlight the evidence of P.W.3 on the unpleaded facts in order to boost (also in great detail) the evidence of D.W.4 who is a brother to D.W.5 and both in-laws to D.W.2 (the 2nd defendant) so as to provide reasons for dismissing the case of the plaintiffs.
Below are what the Respondent called issues for determination:-
ISSUES FOR DETERMINATION:-
1. The issues for determination postulated by the Plaintiffs/Appellants are pure issues of facts.
2. The issues being issues of fact the Plaintiff/Appellants are bound and/or required under S. 134 (1) (2) of the Evidence Act to prove their claim which they failed to do.
3. Submitted that the learned trial Judge saw the witnesses and evaluated their evidence correctly copiously and found the case of the Plaintiffs/Appellants not proved.
4. That the learned trial Judge dismissed and rightly too the case of the Plaintiffs/Appellants as required in cases not proved. Kodilinye v. Odu (1935) 2 WACA 336 at 33 Oyeyide V. Adeoti (1973) NMLR 103 at 104 Adebakin v. Odujebe (1973) NMLR 148 at 124.
Clearly, the above are not issues. Simply, these are arguments in reply to some of the submissions contained in the appellants brief. This means that the respondents did not formulate any issue for determination. Although three issues were formulated in the appellants briefs learned counsel for the appellants abandoned the issues so formulated and went ahead to argue the grounds of appeal in the brief. This is a bad practice. In arguing appeals, counsel is to rely on the issues so formulated rather than on the grounds of appeal, for it is on the basis of the issues that the parties found their contention. See the advice given by the Supreme Court in Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Pt. 144) 282 at 321.
The facts of the case are: – The 1st plaintiff is the incumbent Baale of Ile-Ogo, while the 2nd plaintiff is his younger brother of full-blood. Their case is that all land at Ile-Ogo including the land in dispute is stool land and as such belongs to the Baale of Ile-Ogo. Whoever wants to build at Ile-Ogo must therefore take his grant from the Baale. It was Baale Ologunade who granted land to Aguda, the father of the second defendant. Aguda was allowed to reap palm fruits at Igbo Elepe. Sometimes in November, 1981 Salami Ogundokun the 1st defendant, forcibly entered the land in dispute and started to build a house on it two months later. When challenged, the 1st defendant told the Baale that the land was granted to him by Sariyu Ajao, the second defendant.
The defendants admitted that the land in dispute is at Araro in Elepe forest Ile-Ogo. The 2nd defendant also admitted granting the land in dispute to the 1st defendant. The 2nd defendant averred that the original owner of the vast area of land including the land in dispute was his ancestor called Aguda who acquired the land by settlement. He said he inherited the said land under native law and custom. He further averred that the plaintiffs have no traditional or customary right of ownership or possession over the land at Ile-Ogo as the land is held by families.
The plaintiffs and defendants shall hereinafter be referred to as appellants and respondents respectively.
At the hearing of the appeal, counsel for both parties adopted their respective briefs and made oral submissions in expatiation of the briefs. It was argued on behalf of the appellants that the trial Judge failed to evaluate, consider and apply the totality of the evidence proferred by the plaintiffs and their witnesses. It was contended that the Judge picked on PW3 and evinced his dislike for the evidence he gave and yet could not find anything untrue in the evidence. It was submitted that the evidence of D.W.4, upon which the trial Judge heavily relied, contained so many contradictions and that D.W.4 admitted that it was the Baale who granted land to Aguda when he came to settle at Ile-Ogo. It was further submitted that the trial judge failed to consider the relationship of D.WS 4, 5 & 6 with DW2. It was argued that the learned trial Judge admitted and applied inadmissible evidence to come to his decision.
For the respondents, it is argued in their brief that the learned trial Judge saw and evaluated the evidence of the witnesses properly and thereby arriving at the right conclusion. It was submitted that where the trial court has evaluated the evidence properly, the Court of Appeal will not disturb the finding of the lower court. It was further submitted that the appellants woefully failed to prove their claims. It was contended that there was no evidence that appellants were customary trustees of the land at Ile-Ogo. The arguments of the appellants, it was submitted, are based on erroneous misrepresentation of the findings of the trial court and that the arguments are not related to the judgment of the trial court and totally lack nexus with the issues for determination. It was further submitted that, the evidence believed by the learned judge showed clearly that land at Ile-Ogo belonged to the families and that the Baale does not own all the land at Ile-Ogo nor was the land communal or stool land.
From the grounds of appeal filed, it is my humble view that the real and only issue that calls for determination in this appeal is: – Whether or not the learned trial Judge has correctly and properly evaluated the evidence adduced before him. I will now examine the evidence adduced by all the parties to determine whether or not the learned trial Judge has properly evaluated the evidence before him. However, before doing that I think it apposite at this juncture, to state the attitude of an appellate court with regards to finding of fact of trial courts. The general rule is that an appeal court does not interfere with findings of fact by a trial court. This is so because a trial Judge has the opportunity and the advantage of seeing, hearing and observing the demeanor of witnesses. Because of this, he is in a better position than the Court of Appeal to correctly assess the credibility of a witness. See: – Mogaji & Ors. V. Rabiatu Odofin & Ors. (1978) 4 SC 91. This principle however, is not a carte-blanche to trial courts to ignore the evidence adduced before it in making its findings. Where a trial court makes a finding which is perverse or draws a wrong conclusion from the totality of the evidence before it, the Appeal Court is duty bound to interfere, asses the evidence adduced and make findings that the facts before it demand. See Surakatu Amida v. Oshoboja (1984) 7 S.C. 68.
Let me now consider the evidence adduced. The appellants testified and also called seven witnesses who testified on their behalf. P.W.3 Salawu Alabi Dalemo is a half brother of Sariyu Ajao – the second respondent. They are of the same father. He testified that (page 18 of the record):-
“I know the land in dispute … Bale Ile-Ogo granted my father harvesting rights on the palm fruits on the land. The Bale gave my father the rights which were not taken from him and have been enjoying the rights too with my brother including the second defendant we have no right to the land”.
Under cross-examination, P.W.3 admitted that he did not know when their father died so he did not attend the funeral obsequies of their father. Also D.W.2 testified that P.W.3 was cursed by their father and that P.W.3 does not live at Ile-Ogo. In his judgment this is what the learned trial Judge said about P.W.3 and his testimony:-
“While I agree that 3rd PW (Dalemo) is the oldest member of the second defendant’s family, I do not believe that he is the head of the family. There is the abundant evidence that he does not reside at Ile-Ogo and did not even attend the funeral ceremony of his father. I do not believe that members of his family can retain a person of his character as their head of family. He appears to me to have been procured by the plaintiffs, as an outcast of his own family, to give evidence against his family interest. In the circumstance, I reject his evidence entirely.”
With due respect to the learned Judge, the fact that P.W.3 was not at the funeral ceremony of his father and that he does not live at Ile-Ogo, in my opinion, does not mean he does not know whether their family acquired the land by settlement or it was granted to their father by Baale Ile-ago. The question whether he is the head of their family or not does not arise because it was never made an issue. In fact P.W.3 did not claim he is the head of the second respondent’s family. All he said was that he was a half brother of the second defendant. This has not been denied by the second respondent. Also, there is nothing on the record to suggest that P.W.3 was procured by the plaintiffs as an outcast, to give evidence against his family interest.
I now come to the evidence of DW4 whose evidence, the learned trial Judge found “irresistably true”. DW4 is the Balogun of Ile-Ogo and is second in rank to the Baale. He is over 100 years of age. He knows the land in dispute. He claimed it was him who begged the 2nd respondent to grant the land in dispute to the 1st respondent. He continued to say:-
“It is not true that all the land at Ile-Ogo belongs to the Baale. Each family has his own land. I also have my own as Balogun of Ile-Ogo. It belongs to Balogun family …The land belongs to Sariyu’s great ancestors. Aguda was the first to settle on the land. After Aguda, Aruna inherited the land after him Bello inherited it. After Bello is the second defendant.”
However, under cross-examination, this is what DW4 said:-
“When Aguda came to settle at Ile-Ogo Adekanmbi was the Baale. It was Baale Ile-Ogo who granted him the land on which he settled. (Underline mine)
With regards to DW4 this is what the trial judge said:-
“From his evidence I believe that every family in Ile-Ogo has its own land and the witness has his own house on his own land. I believe he took no grant from the first plaintiff.”
It is clear that the learned trial judge did not advert his mind to the apparent contradictions in the evidence of DW4. In examination-in-chief, he said it was not true that all land at Ile-Ogo belonged to the Baale and that Aguda first settled on the land whereas under cross-examination he said it was Baale Ile-Ogo who granted Aguda the land on which he settled.
At page 34 of the record DW4 said:-
“I was present when 2nd defendant granted land to Ogundokun 1st defendant.”
However DW5 testified at page 35 of the record thus:-
“The land was granted to the 1st defendant in my presence. The 2nd defendant and members of his family were there and they prayed there that day. Balogun was not there then“. (Underline mine)
The Balogun DW4 said he was there when the land was granted to the 1st respondent whereas DW4 said he was not there. If the learned trial Judge had carefully assessed the totality of the evidence of DW4, I believe, he would not have found his evidence “irresistably true”.
In his judgment, the learned trial Judge stated at page 47 of the record:-
“I am also attracted by the evidence of the 2nd DW when he said:-
I never applied to the Baale for land to build my house. The present Baale had not been installed when I built my house’ Indeed, if the present Baale (1st Plaintiff) had not been installed when he built his house, the first plaintiff could not have been his grantor at all.”
I think this is a misconception. The 1st plaintiff did not claim, either in the Statement of claim or in the evidence adduced, that he personally granted the 2nd respondent the land on which the 2nd respondent built his house. The plaintiffs’ contention is that it was the Baale Ile-Ogo who granted the land to the 2nd respondent’s ancestor Aguda. This cannot be construed to mean it is the incumbent Baale who granted the land to the 2nd respondent.
It could be seen that the learned trial judge has taken a wrong approach to the assessment of the evidence and has misdirected himself as to the proper import of the evidence adduced before him. The Supreme Court has given guidelines on how the attitude of an appellate court should be in a situation like this. See:-Lt. Col Mrs. R.A.F. Finnih v. J.O. Imade (1992) 1 NWLR (Pt.219) 511 where Nnaemeka-Agu J.S.C. stated at page 543:-
“Where however the question relates to the findings of a Judge of trial on primary facts, the law takes the view that an appellate court which has not got his advantage of seeing and listening to the witnesses testify ought not interfere on the printed evidence simply because the appellate Judge might have taken a different view of the facts. The appellate Judge cannot substitute his own view on the facts for that of the trial Judge. He can, however intervene on such findings where he is satisfied that the learned trial Judge has not taken a proper advantage of his having seen and heard the witnesses testify. Such will be the case where the trial Judge makes a wrong approach to the assessment of a piece of evidence or gives a wrong reason for accepting or rejecting a piece of evidence, or accepts oral testimony which is in conflict with real or documentary evidence, or misdirects himself as to the proper import, of the evidence or gives an unsatisfactory reason for accrediting a piece of evidence. In either case, the issue of fact is at large. But, even so, the appellate Judge will again advise himself as to whether it is evidence of such a nature that he can resolve the issue on printed record and without reference to the demeanor of witnesses. Such will be the case, for an example, where the evidence is documentary. But where the fact must be resolved on demeanor of witnesses whose testimonies conflict the appellate Judge has no alternative but to order a retrial.”
I have earlier in this judgment highlighted some pieces of evidence where in my opinion, the learned trial Judge has either not adverted his mind to the contradictions in the evidence he has accepted or misdirected himself as to the proper import of the evidence or has given unsatisfactory reasons for discrediting a piece of evidence. I cannot resolve these issues because their resolution depends on the credibility of the witnesses which necessarily involves their demeanor. I will therefore order for a retrial.
In the circumstance, the appeal is allowed. The judgment of the lower court is set aside. The case is hereby remitted back to the Osun State High Court to be tried de novo before another Judge. I award N300 costs in favour of the appellants.
Other Citations: (1992)LCN/0141(CA)
