Afolabi Coker V Mariamo Oguntola & Ors (1985)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
The respondents herein were the plaintiffs in suit No. AB/33/73 instituted against the appellant and one Raimi Beji in the Ogun State High Court, Abeokuta Judicial Division, Abeokuta, on 30th March, 1973. In the suit the respondents claimed as follows:
“(a) Declaration of title to all that piece of land shown on the plan attached to conveyance made between Sinatu Efuyola, Raimi Beji and Esther Oyindaola and Solomon Oyeneye Coker dated 31st day of January, 1945 and registered at No. 80 at page 80 in volume 505 of the land registry, Ibadan.
(b) An order setting aside the conveyance made between Sinatu Efuyola, Raimi Beji and Esther Oyindaola and Solomon Oyeneye Coker dated 31st day of January, 1945 and registered as No. 80 at page 80 in volume 505 of the land registry, Ibadan. The annual rental value of the land is N20.”
Pleadings were ordered, filed and exchanged, but before hearing commenced, 2nd defendant, Raimi Beji was reported dead and the respondents withdrew their action against him.
The respondents case was that their ancestor Odutolu was the first person to settle on the land in dispute some time in 1830; that he later brought his brother, Sofoluwe to live with him on the land and that both of them cultivated and used the land jointly; that Sofoluwe died first, and after the death of Odutolu, the children of both Odutolu and Sofoluwe inherited the land under native law and custom, and continued to use it without partition; that some time in 1972, the respondents saw a building on the land, and upon inquiry, found that it was being erected by the appellant who when challenged, claimed that the land had been sold to his father in 1942 by one Idowu Beji, a member of the respondents family. It was the respondents case that as the land in dispute was not the personal property of Idowu Beji, he could not have validly sold it to the appellant’s father.
The appellant’s case was that the land in dispute was the personal property of Idowu Beji, who had inherited the same from his mother Mosuago, the only issue of Odutolu; that his father Chief Solomon Coker bought the land from Idowu Beji in 1942 and thereafter continued to exercise numerous acts of ownership on the land without disturbance; that in 1945 a formal Deed of Conveyance (Exhibit C) in respect of the land was executed by the children and sister of Idowu Beji in favour of his father.
Before hearing commenced, counsel were invited to settle issues to be determined by the Court and both counsel agreed that the issues for determination were:
“(i) Whether the land was the personal property of Idowu Beji at the time he purportedly sold it to 1st defendant’s father, or
(ii) Whether, at that time the land was Odutolu family land of which Idowu was a branch,
(iii) If the land were family land, whether the plaintiffs have been guilty of laches and acquiescence. ”
After hearing the parties and their witnesses, the learned trial Chief Judge came to the conclusion that the respondents had established their claim. He consequently granted them declaration of title to the land in dispute but refused to set aside the Deed of Conveyance.
Being dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal (Ogunkeye, Akanbi and Omo, J.C.A.) on a number of grounds, and in the judgment delivered by Omo, J.J.C.A., and concurred in by Ogunkeye and Akanbi, J.J.C.A. that court dismissed his appeal and upheld the decision of the High Court.
Still not satisfied, the appellant has further appealed to the Supreme Court on the three grounds of appeal, complaining as follows:
GROUNDS OF APPEAL
“1. The Federal Court of Appeal misdirected itself in law when it held as follows:
“There is no doubt that Exhibits D to F are exfacie (sic) personal and not representative actions…….If this process of inheritance was not established by the respondent, then it becomes very clear that he was dealing with family property as his personal property unchallenged. Furthermore, Exhibit C has been shown by the trial Judge to be defective, passing no interest whatsoever to any purchaser and inadmissible in evidence.”
PARTICULARS
(i) There was no evidence to support the conclusion of the Court of first instance as confirmed by the Federal Court of Appeal that Idowu Beji appeared to the outside world as the sole owner of the land in dispute.
(ii) The court actions taken by Idowu Beji (Exhibits D, E, F) speak for themselves and show the capacity in which Idowu Beji sued. It was improper to substitute the opinion of witness for the records of court.
(iii) The respondents knew of the court actions when the actions were in progress and if they claimed as co-owners with Idowu Beji, they are estopped from subsequently setting up claims contrary to the tenor of the actions fought by Idowu Beji.
(iv) Exhibit C, a registered instrument which was tendered by Consent of the parties constitutes notice to respondents and was never declared to be inadmissible evidence by the Court of first instance.
- The submission made to cover Ground 2(d) to (g) is that the learned trial Judge erred in coming to the conclusion by flying against clear evidence before him, that the respondents were not guilty of laches and acquiescence…….Nor is it applicable to the facts of this case so as to justify the conclusion that the respondents stood by whilst their ‘brother’ Idowu Beji claimed the land as his own……”.
PARTICULARS
(i) The facts found approved (sic) by the appellants, that is to say that acts of Chief Coker, his widow and his children, and the occupation of the land in dispute by persons claiming through the appellant constituted acquiescence. In limiting the acts to the acts of Idowu Beji alone the Court of Appeal failed to direct itself on the quantum of the acts which constituted acquiescence in the case.
(ii) Even if the consideration were limited to the acts of Idowu Beji, such acts (Exhibits D, E, F) were sufficient to conclude the issue against the respondents.
- The Federal Court of Appeal misdirected itself in law in holding as follows:
“In the light of the issues framed the pith of the traditional evidence is whether or not Mosugo was the only child of Odutolu. The fact that the seven children of Odutolu set out in the pleading were later said to belong to his brother Sofolu and himself is in the con of this case immaterial….”
PARTICULARS
(i) The family tree of the parties being material to determine the issues settled, any departure from the genealogy pleaded which purported to be answers to the issues is fatal to the case of the respondents on whom rests the onus of showing (sic).
(ii) Since (sic) the customary law a person’s real estate is inherited by his children to the exclusion of other blood relations, the Federal Court of Appeal did fail to direct itself on the need to establish the family tree pleaded with particularity; moreso “when Sofoluwe who was alleged to be Odutolu’s brother did not feature in the family tree’.”
At page 2 of this brief, learned counsel to the appellant formulated the issues for determination in this appeal as follows
“(1) Whether it is open to a court in the trial of an issue on the basis of previous judgments which are tendered by consent, to go behind the judgments and not to confine itself to the substance of the decision contained in the judgments.
(2) Whether the judgments (Exhibits D, E and F) and memoranda attached to the conveyance, (Exhibit C) and the acts testified to and as found by the trial court do not sustain the defences of laches and acquiescence.
(3)(a) Whether in a case where the plaintiffs rely on their genealogy to found their case the Court was not obliged to make specific findings in very clear terms on the genealogy pleaded and that proved if what was pleaded differs from what was testified to.
(b) Is failure to make such clear findings not fatal to a decision on the issue”
Now it is obvious that issue No. (1) Above arises from the first ground of appeal. One of the complaints in this ground of appeal is that both the High Court and the Court of Appeal failed to give effect to the judgments in Exhibit D, E and F. In my view, all the arguments canvassed in the appellant’s brief in support of this ground of appeal, and the oral submissions made in amplification of these arguments were to the effect that, if the courts below had confined themselves to the substance of the decisions in Exhibits D, E and F and had properly evaluated all the evidence adduced, they (the Courts) would have come to the conclusion that the land in dispute was the personal property of Idowu Beji. But this was precisely one of the important issues that both parties agreed should be resolved by the trial Court and in respect of which that Court found as follows:
“I am satisfied from the evidence before me that the land in dispute is family land, that it has been used in turn by elders of the family and has not at any time been partitioned…………
I was not told that Idowu was the Head of the Odutolu family. I got the impression that he just managed the property on behalf of the family. If he were the Head of the Family, I would have to consider whether the sale to Chief Coker was void or voidable. But there is no need to embark upon such consideration because the Defendant’s case was that the land belonged to Idowu personally, he having inherited it from his mother. I do not believe that. I find as a fact that the land was family property, and that Idowu had no right to sell the land to Chief Coker without the consent of members of this family.”
The above findings of facts which, in my view, were amply supported by the evidence before the trial court, were confirmed by the Court of Appeal. Thus we have two concurrent findings of fact on the issue of the ownership of the land in dispute at the time it was purportedly sold to the appellant’s father. Now the general rule is that where there are two concurrent findings of fact, such findings will not be disturbed by this Court unless there is a substantial error apparent on the record of proceedings. See Mogo Chinwendu v. Nwanegbo Mbamali and Anor. (1980) 3-4 S.C. 31 at page 75; Kofi v. Kofi 1, W.A.C.A. 284 at page 285; Ganiyu Kale v. Madam Coker (1982) 12 S.C. 252 at page 271. The Court will interfere only where not to do so will occasion a substantial miscarriage of justice.
The appellant in this appeal has failed to persuade me that the concurrent findings of fact by the two lower courts were not justified. This ground of appeal therefore, fails.
The second ground of appeal raises the issue of the plea of laches and acquiescence, and the substance of the complaint here is that the Court of Appeal was wrong to have upheld the finding of the trial court that the appellant’s defence of laches and acquiescence was not established. In this connection, Chief Olisa Chukura, learned Senior Advocate for the appellant, made the following submissions.
(1) That the acts found proved by the appellant’s witnesses were sufficient to sustain the plea of laches and acquiescence.
(2) That to the knowledge of the respondents, the appellant’s father planted some oranges and bananas on the land, and that he was never challenged because the respondents knew that he had bought the land.
(3) That the courts below should have held that the averments in the pleadings in respect of the erection of some advertisement boards on the land were proved.
(4) That in dealing with the plea of laches and acquiescence the Court of Appeal confined itself to the acts of Idowu Beji alone and “failed to direct itself on the quantum of the acts which constituted acquiescence in the case”.
With regard to the various acts found proved by the appellant’s witnesses the finding of the trial court, which was based on the evidence before it, was that the acts proved were temporary in nature and not permanent in character as to lead one to the conclusion that they were acts in proof of exclusive ownership of land.
With regard to the appellant’s plantation, the evidence accepted by the learned Chief Judge was that Idowu Beji gave part of the land in dispute to the appellant’s father to establish a piggery and plant only cash crops, and that when the appellant’s father started planting oranges and bananas on the land, Idowu Beji had them cut down. It was also established that the appellant’s father had removed his piggery from the respondent’s land before he died.
With regard to the question of the erection of advertisement boards on the land, in paragraph 29 of his Statement of Defence the appellant pleaded as follows:
“From 1964 to 1968 the defendant collected rent from the West African Publicity Limited which later became Afromedia (Nigeria) Limited which (sic) for advertisement boarding Nos. At (sic) 125 and 105 on the land in dispute. These advertisement Hoardings (sic) were in very conspicuous places on the “land in dispute and were visible to everybody who knew the land in dispute.”
In order to prove the above averments, the appellant gave evidence and tendered Exhibit “G” the contents of which are as follows:
“RECEIVED FROM WEST AFRICA PUBLICITY LIMITED, LAGOS
The sum of two Pounds nil Shillings nil Pence (2 pounds) for advertisement Hoarding No. 105 on my property at Aro from 1958 to 1959.
(Sgd.)
Witness to Signature………. O.K. COKER
This receipt also signifies my agreement to the renewal of the rights granted to West Africa Publicity Limited, for the erection of the advertisement boarding No. 105 size 19 x 88 on my above described Property and a continuance of these rights for a further period of one year with the option of a fresh renewal after this period at the same rental of 2 per annum, it being further agreed that one month’s notice in writing be given by either party should the removal of the hoarding be desirable, in which case rent will be returned to West Africa Publicity Limited, on any hoarding be removed, as from the date of removal until the end of the year on the 31st August, 1959.
(Sgd.)
Witness…………….. O.K. COKER
Now, bearing in mind the contents of Exhibit G, could it be seriously contended that that document conclusively proves or is capable of proving that portion of paragraph 29 of the appellant’s statement of defence set out above My answer is in the negative. In the first place there is hardly any nexus between Exhibit “G” and the land in dispute. Secondly, while the averments in the pleadings speak of the appellant collecting rents “from 1964 to 1968”, Exhibit “G” would appear to cover period 1st September, 1958 to 31st August, 1959. No attempt was made to explain the apparent discrepancy between the averments in the pleadings and the evidence adduced to prove them. Thirdly, assuming Exhibit “G” is the actual receipt issued for the payment of rents made by the publicity company to the appellant, in my view, its mere production cannot be proof of the fact that the advertisement boards were actually erected “in very conspicuous places on the land in dispute and were visible to everybody who knew the land in dispute”, as pleaded by the appellant.
For the above reasons, I am in agreement with the lower courts that the semi-permanent act pleaded in paragraph 29 of the appellant’s statement of defence was not proved.
Lastly on this ground, the complaint that the Court of Appeal, when considering the appellant’s plea of laches and acquiescence, confined itself to the acts of Idowu Beji alone, is not borne out by the record as the relevant portion of that court’s judgment states as follows
“The submission made to cover Ground 2(d) to (g) is that the learned trial judge erred in coming to the conclusion, by flying against clear evidence before him, that the respondents were not guilty of laches and acquiescence. The facts as found by the court below are that the acts of ownership proved were not of such permanent character as to lead it to the conclusion that they were acts in proof of exclusive ownership of the land and against the interest of the other members of Odutolu family. No evidence was adduced to challenge the temporary nature of acts. Some semi-permanent acts averred were not proved. Even the piggery once established thereon by appellants predecessors were removed by him. The only attempt at a permanent user, the construction of a house thereon, was immediately challenged.”
On the totality of the evidence adduced, therefore, I am of the firm view that both the High Court and the Court of Appeal were right in their decision that the appellant’s plea of laches and acquiescence was not established. Accordingly, the second ground of appeal also fails.
The substance of the complaint in the third ground of appeal was that the respondents failed to adduce evidence to prove the averments in paragraph 13 of the Amended Statement of Claim. It was said that while the respondents averred in their pleadings that Odutolu had seven children, the evidence adduced at the trial showed that he, in fact, had only three children, and that the remaining four children named in the pleadings, were the children of his brother, Sofoluwe. I do not see any substance in this complaint.
The main issue in controversy between the parties was whether the land in dispute was Odutolu family land at the time it was purportedly sold to the appellant’s father (as the respondents alleged) or whether it was the personal property of Idowu Beji (as the appellant claimed). This was the issue which the trial Court resolved in favour of the respondents. In my view, as the number of Odutolu’s children was not a material issue before the trial Court, failure on the part of the respondents to substantiate their averments on the point was not fatal to their case.
In the final result therefore, all the grounds urged before us having failed, the appellant’s appeal fails and it is hereby dismissed with N300.00 costs awarded to the respondents.
SC.108/1984
