Alhaji A. Baruwa V. Chief S.T. Osoba (1996)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A. 

An action for the following reliefs was instituted by the plaintiff who is now the respondent against the appellants in the High Court of Ogun State, sitting in Ijebu-Ode.

1. A declaration that he is the person entitled to a Certificate of Occupancy in respect of a large parcel of land situate, lying and being along Imoru Road in Ijebu-Ode as will be more particularly shown on a Survey Plan to be filed later.
2. N50,000.00 being general damages for trespass being committed on the said land by the defendants.
3. An injunction to restrain the defendants, their servants, agents and anyone claiming through and by them from disturbing the plaintiff any longer in the enjoyment of his land.

Pleadings were exchanged by parties, and settled at statement of claim and amended statement of defence.

The plaintiff’s case is that he bought the piece of land in dispute from the Okuwoga Mole Family and deed of conveyance was executed. After the purchase a signboard bearing the plaintiff’s name was erected on the land and the plaintiff caused weeds on the land to be cleared twice a year. In 1979 the plaintiff read a newspaper publication that a Mr. M.O. Okubadejo has applied for Certificate of Occupancy to his land describing the land as Chief J.A. Ajayi Layout. The plaintiff filed a caution. Although Chief J.A. Ajayi is a member of Okuwoga Mole Family, the land in dispute was not the one given to his branch of the family. In 1981 the plaintiff discovered that some persons had buried pillars on his land and erected structures thereon. These people who were defendants in the lower court claimed they bought the land from the children of Okuade, the daughter of Okuwoga Mole.

The plaintiff claimed that the sale is illegal, null and void.

On their own part, the defendants’ case is that the land in dispute belonged to one Osi a hunter and farmer who settled at Isoku with a farmland along Imoru road, which forms part of Isoku. Osi begat Olatusen who married Okuwoga Mole who begat Okuade.

After the death of Olatusen, Okuade inherited the land, and farmed on it.

Okuade begat Chief Joshua Ajayi and Janet Osibogun and others, who inherited the land under native law and custom; and no member of Okuwoga Mole Family can claim any interest in the land. The land was layed out into plots and sold to all the defendants by the Okuade Family.

Both parties adduced evidence which the learned trial Judge evaluated. Their counsel addressed the Court and the addresses were considered by the learned trial Judge who found in favour of the plaintiff and gave judgment. Aggrieved by the judgment the defendants appealed to this Court on 6 grounds of appeal. In accordance with the rules of this court counsel for both sides exchanged briefs of argument which they adopted at the hearing of the appeal. In the appellants’ brief of argument were formulated five issues for determination. They are:-

1. Whether there was sufficient evidence to support the findings of the court on plaintiff’s claim and the decision of the trial court.
2. Whether the plaintiff has discharged the burden of proving the traditional evidence relied upon by him.
3. Whether the plaintiff has discharged the burden of proving partition.
4. Whether the admission of a copy of judgment in Suit HCJ/62/81 and the application of section 45 of the Evidence Act had occasioned a serious miscarriage of justice.
5. Whether the plaintiff was entitled to an order for possession.

I will take the issues in the sequence they are set out above, starting with the first one. The thrust of the appellants argument under this issue is the lack of proof by the respondent of the radical title of Okuwoga Mole Family, and the partition of the Okuwoga Mole land upon which he has hinged his claim. First and foremost what should be considered is the radical title of the original owner from whom others derived title down to the plaintiff. The plaintiff traced his title to Okuwoga Mole Family.

In doing so the root of title must be traced, and how the land became vested in the person who either settled thereon or was granted the land. Traditional history is one of the five ways in which a party can claim declaration of title to land. See: Idundun v. Okumagba (1976) 9/10 S.C. 227. To succeed in the claim for declaration of title to land based on traditional history a party must trace his title to the original settler or grantee by credible, cogent and conclusive evidence to the satisfaction of the trial Court. See: Atuanya v. Onyejekwe(1975) 3 SC 161; Olujebu  of Ijebu v. Eleda of Eda (1972) 5 SC 143; and Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) page 238. In the instant case, even though the respondent claimed his title from Okuwoga Mole he neither pleaded nor gave evidence on how the said Okuwoga became seised of the land.

As regard Exh. ‘A’ it is the contention of the learned counsel for the appellants that the respondent did not prove his claim in that he neither proved the execution of the deed Exh ‘A’ nor its due execution. He placed reliance on the case of Abiodun Adelaja (Attorney for Victor Odudemi) v. Olatunde Fanoiki (1990) 2 NWLR (Pt.131) page 137. In reply learned counsel for the respondent has submitted that this contention is unfounded in view of the evidence of the respondent and P.W. 4. I will now look at the various relevant pieces of evidence of first, the respondent. These read:-

“I bought the land in dispute in 1976 from the Okuwoga Mole Family headed by Daddy Shittu Adebogun and I was given a conveyance …

When I bought these land three branches of Okuwoga Omole family joined in the conveyance. It was only Okuade branch that did not join in the conveyance.

Then under cross-examination he said:-

“Shittu Adebogun is the direct son of Okuwoga Mole … I do not know the names of the children of Shittu Adebogun. I was introduced to them when I was buying the land in dispute I know Wahabi Olabinjo. He is one of those who signed Exhibit ‘A’ Kolajo Olabinjo, the brother of Wahabi Olabinjo also signed Exhibit ‘A’. P.W. 4 Kolapo Olabinjo testified thus:-

“I was one of the parties that signed Exhibit’ A’ for the plaintiff in 1976. I know Mr. Shittu Adebogun our head of family. He signed Exhibit ‘A’. Shittu Adebogun is now dead …

I belonged to Okubanjo section. When the land in dispute was being sold, only three branches of the Okuwoga Mole family signed Exhibit ‘A’.

Then under cross-examination on the status of Shittu:-

“Shittu Adebogun is not a direct son of Okuwoga-Mole.”

This last bit of evidence contradicts the evidence of the respondent supra, where he said Shittu Adebogun is the direct son of Okuwoga Mole. With this contradiction can be seen the fact that the credibility of the evidence is questionable and thus makes it unreliable.

Now, to the deed of conveyance Exhibit ‘A’ which reads:-

“This conveyance is made this 15th day of June, 1976 BETWEEN (1) Mr. Shittu Adebogun (Head of Okuwoga Mole family).

(2) Mr. Salawu Tola… (3) Mr. Kolapo Olabinjo …(4) Madam Salimotu Olabinjo (5) Mr. Alii Olusada … (6) Abudu Gafari Fafore … (7) Mr. Gbadamosi Kujore … (8) Madam Salamotu Ede … (9) Madam Abibatu Rabiu and (1) Mr. Oladipo Okusaga … (herein after called ‘the vendors’) which expressions shall where the context so admits including their heirs, successors-in-title, assigns, executors and administrators of the one part and Chief Samuel Taiwo … Osoba (hereinafter called the ‘purchaser’).

Whereas:-

(1) The land subject matter of this conveyance originally belonged to Mr. Okuwoga Mole, the ancestor of the vendors who died a long time ago.

(2) The Vendors are the accreditted representatives of and representing all branches of the said Okuwoga Mole family and are the ones entitled under Native Law and Custom obtaining in Ijebu-Ode to deal with the intestate real and personal estate of the said Okuwoga Mole.”

It is interesting to note and also to emphasise here that the Executors of Exh. ‘A’ signed as representatives of all branches of Okuwoga family as is stated above. This again is from the evidence of P.W. 4 where he said only three branches of the Okuwoga Mole Family signed Exh. ‘A’. There is nothing on record with the exception of Shittu Adebogun to show the branches of Okuwoga family the signatories in Exh. ‘A’ belong to. There is nothing in Exh. ‘A’ to show that only three branches of Okuwoga family signed or that there had been a partitioning of the property, for Exh. ‘A’ confirms that the conveyance was purportedly for the whole Okuwoga family. I don’t agree with the submission of learned counsel for the respondent that the respondent has discharged the onus placed on him that Exh. ‘A’ was executed by the family head and elders, as was done in Alade v. Aborishade (1960) SCNLR 398 and Amoo v. Aderibigbe (1994) 2 NWLR (Pt.324) page 92. In this regard I hold that the land in dispute did not belong exclusively to only three branches of the family, if at all they had interest in it, for it has been established that Okuade and his descendants have interest in it. In the circumstance the sale without the consent of the said Okuade family (as has already been testified by the plaintiff’s witness) is invalid and void. In the light of the foregoing argument the answer to this issue is in the negative. The related 1st and 5th grounds of appeal to which it is married succeeds.

The next issue raised, is whether the plaintiff has discharged the burden of proving the traditional evidence relied upon by him. In dealing with this issue recourse must be made to the pleadings of the plaintiff. Pleadings being the foundation of an action, in which the party seeking redress must state the facts upon which his claim is predicated, must contain all such facts and issues that will assist him in presenting his case, and at the same time put the party on the opposite side on notice of what to expect. That in essence is the function of pleadings. See: Total v. Nwako (1978) 5 SC 1 and Emegokwue v. Okadigbo (1973) 4 SC 113. Even though the plaintiff’s claim may have been hinged on traditional history he did not plead how the land which he was claiming came to be owned by Okuwoga Mole, as required by the law. The averment in paragraph (2) of the statement of claim is not all sufficient for the purpose of proving title through traditional evidence.

Paragraph 2 states:-

“2. In June 1976, the plaintiff bought the land in dispute from the entire family of Okuwoga Mole Family (Okuade excluded) and headed by Daddy Shittu Adebogun.”

The above averment on its own has not gone to the root of title of Okuwoga Mole, for nowhere in the statement of claim was the manner of acquisition of the land stated. Hence the crucial foundation upon which the claim was based was deficient, having lacked the facts of any of the traditional ways land is originally acquired under law and custom i.e. settlement grant or conquest. See: Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) page 386 and Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) page 417. These facts having not been disclosed in the plaintiff’s pleading, completely knocks the bottom of his case, for parties are bound by their pleadings, and must confine their case within the periphery of what they have pleaded. Any evidence adduced outside the pleadings become non issue and must be discountenanced. See: Metalimpex v. Leventis (1916) 2 SC 91; and Petrojessica Ent. Ltd. v. Leventis Technical (1992) 5 NWLR (Pt.244) page 675. As a matter of fact there is no traditional evidence given, even by P.W. 4, a descendant of Okuwoga Mole on the traditional. Since the plaintiff has not predicated his case upon any of the other four ways of proving title to land, I am of the view that he failed woefully in proving any traditional history or his claim. It is trite that for a case that is fought on the basis of traditional history to succeed the evidence in support of the pleadings must be cogent, credible and conclusive, starting right from the original owner to the person claiming title. The sequence of events must not snap and no lacunae must be left. In the present case, there is even no such history, let alone the inconclusiveness of the history. There was, therefore, in my view, nothing to discuss by the learned trial Judge on this to the extent of making a recourse to Kojo v. Bonsie (1957) 1WLR 1223 and even comparing it with the instant one, and in the process expressing the following view:-

“In my view, the traditional history presented by the plaintiff is more probable.”

The succinct question here is, what traditional history? Of course the defendants pleaded traditional history and adduced evidence to support it, but this was not believed by the learned trial Judge. However, even if he was right not to believe it, the plaintiff must prove and fight his claim on the strength of what he has put forward, and not on the weakness of the defendants’ case. I disagree with learned counsel for the respondent that the plaintiff discharged the onus placed on him for he has not pleaded the required traditional history, irrespective of the pleading of the genealogical history of his vendors. That has not cured the defect, for the crucial requirement has not been met. I fail to see the bearing S. 75 of the Evidence Act Cap. 112 of the Laws of Federation of Nigeria, 1990 cited by learned counsel for the respondent has on this discussion, because paragraph (24) of the Amended Statement of Defence did not admit paragraph (15) of the Statement of Claim in the real sense, learned counsel would want this Court to believe. In like manner the cases relied upon by counsel would have been relevant if the plaintiff had proved traditional history of the land he was claiming. He who asserts must prove. See S. 136 of the Evidence Act supra, and it is obvious from the record of proceedings that the plaintiff failed in the burden cast on him by law. In the light of the discussion above the answer to the issue is in the negative. The learned trial Judge therefore erred in accepting the traditional evidence of the plaintiff, and so ground of appeal No. (2) succeeds.

Issue No.(3) is whether the plaintiff has discharged the burden of proving partition. Again, I will look at the plaintiff’s statement of claim to ascertain if partition was pleaded. Indeed it was pleaded in paragraphs 16, 17 and 18 of the pleading, and they read:-

16. After the death of Okuade her eldest child Joshua Ajayi Awolaja asked the Okuwoga Mole family to partition to him and his younger brothers the area of Okuwoga’s estate rightly belonging to their mother.
17. The family gave them all the land known as Oluden farm facing the Ijagun Road, Ijebu-Ode.
18. The family retained the bigger land along Imoru Road for the other three male children of Okuwoga namely:-

Adebogun, Okubanjo and Banjoko to be held jointly by them in undivided portion.

Those averments were denied in the Amended Statement of Defence.

Undoubtedly, there is evidence in support of the above averments vide the evidence of P.W. 4. In his evidence in chief he testified as follows:-

“I know Chief J.A. Ajayi. He is a member of Okuade branch. Okuwoga Mole land at Oluden and Imoru side. The land at Oluden had been given to Chief Ajayi who belonged to Okuade branch.

The rest of the land at Imoru was not shared by the remaining three branches of the Okuwoga Mole family.”

Under cross-examination he re-emphasised his earlier testimony thus:-

“I know the time when Okuade family requested for their share of family land.”

The question that calls for an answer now, is whether the evidence has proved partition. It seems learned counsel for the appellants is of the view that the pieces of evidence have not, for according to him there is no evidence that all members of Okuwoga Mole family which consists of Banjoko, Okuade, Okubanjo and Adebogun branches were parties to the partition and consented to it. Reliance was placed on the cases of Chief J.O. Lahan & 7 Ors. v. R. Lajoyeten & 9 Ors. (1968) 2 ANLR 307; Jarawu Adeleke v. Idadi Ajadi Aserifa (1986) 3 NWLR (Pt.30) 575 and Kadiri Balogun v. Tijani Asani 9 WACA 98. Furthermore, learned counsel has alluded that because P.W. 4 was not sui juris when the purported partitioning was done (by virtue of his own evidence) the partition was not in accordance with the principle governing partition, as is fully discussed in Emmanuel Taiwo Ayeni v. William Abiodun Sowemimo (1982) 5 SC 60. Indeed the evidence adduced by the plaintiff coupled with the denial by the defendants in their amended statement of defence and their evidence negates the concept of partition. I mean if the evidence and the factors and principle of law governing partition are considered side by side it will be difficult to convince one that what obtained at the time, if at law there was such sharing could at most only be described as allotment not partition, for there was no evidence of consent and agreement of such amongst the branches of the family. In other words, what was purported to be partition does not accord with the principles of partition. In Cheshire Modern Law of Real Property 12th Edition by Birn the learned Author posited inter alia as follows:-

“The usual practice is first to enter a preliminary agreement whereby the co-owners consent to the land being partitioned into allotments convenient to be held in separate ownership and as nearly as possible of equal value, provision being made for the payment of a sum of money to secure equality of partition where it is impossible to give each party land of equal value. When the division has been settled, the last step is for the co-owners to execute that form of conveyance which is appropriate to the interest involved.”

Learned counsel has submitted in the alternative that the land remains a family property.

My conclusion on this issue is that since it is not disputed by both parties that Okuade had interest in the land and there is no evidence of consent to partition by the other side, the land has not been partitioned, and it is still family property. In the light of the above discussion the answer to the supra issue is in the negative, and so the third ground of appeal to which it is married succeeds.

Another issue formulated is whether the admission of copy of judgment in Suit HCJ/62/81 and the application of Section 45 of the Evidence Act had occasioned a serious miscarriage of justice. Suit No. HCJ/62/81 was pleaded in paragraph 26A of the statement of claim thus:-

26A. Plaintiff pleads and would rely on the judgment of this honourable court in Suit No. HCJ/62/81 between Mr. T.A. Osoba and M.D. Akala v. M.C. Okubadejo & 9 Ors. judgment delivered on 13th May, 1985.

The certified true copy of the judgment was tendered through the plaintiff, with no objection from counsel for the defendants Alhaji Bakare, as can be seen on page 33 of the printed record of proceedings. It was admitted in evidence. Learned counsel for the appellants’ complaint even though not in the body of the argument proferred in the brief is on the admission of the judgment and the application of S. 45 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990.

Counsel also expressed the view that the learned trial Judge relied on the judgment in arriving at his decision. It is pertinent that I reproduce the finding of the trial Judge on the said judgment at this juncture. On page 97 of the printed record of proceedings the relevant portion reads:-

“The land of the present plaintiff (Area ‘A’ on Exhibit “B’) is adjacent to the land of the plaintiffs (Area ‘B’ of Exhibit ‘B’) in Suit No. HCJ/62/81. Indeed Exhibit ‘B’ was made purposely for the present case and Suit No. HCJ/62/81. The plaintiff in the present suit claimed possession and title under the same grant as the plaintiffs in the said Suit No. HCJ/62/81. This reason is enough for the court to invoke the provision of section 45 of the Evidence Act in favour of the plaintiff in this action and award him his claims against the defendants.”

My understanding of the above finding is not that the said judgment Exh. ‘C’ was used for the purpose of or that it established estoppel or res judicata. So the quarel of learned counsel for the appellants on the issue of estoppel and resjudicata is non issue. What the learned trial Judge did was simply to compare the areas of land claimed in the two suits which he found to be adjacent to each other to see if they are the same, and then he invoked the provision of S. 45 of the Evidence Act to it. The parties are however not the same, for even though the surname of one of the plaintiff in Exh. ‘C’ is the same as the plaintiff in this case, the initials are different.

Learned counsel for the respondent has submitted that assuming that Exh. ‘C’ was wrongfully admitted in evidence, the decision of the trial Judge will be saved under S. 226(1) of the Evidence Act supra. The dominant question is whether substantial justice has been done taking account of what has properly been proved. He referred to the cases of Alhadi v. Allie (1951) 13WACA 323; O. Owoyin v. Omotosho supra, and Ugbola & Ors. v. Okorie & Ors. (1972) 12 SC 1.

I do not subscribe to this argument, and any way that will be considered only if anything of consequence has been proved. In the first place the foundation upon which the plaintiff attempted to build his case has crumbled for lack of any pleading, so having so crumbled any other thing placed on it will automatically go into ruins and nothing can save it. As already found in the earlier part of this judgment the bottom has already been knocked off the plaintiff’s case in the absence of the traditional evidence. Be that as it may, in the circumstances the learned trial Judge shouldn’t have dwelt on the judgment the way he did. This issue is resolved in favour of the appellant, and so the fourth ground of appeal which covers it succeeds.

The final issue is whether the plaintiff was entitled to an order of possession. I cannot fathom why the learned counsel for the appellant found it necessary to formulate this issue which did not arise from any of the grounds of appeal. The position of the law is that any issue formulated for determination must derive its source from a ground of appeal. Where it does not, the issue is incompetent and must be discountenanced. In this vein the issue is discountenanced. See: Bankole v. Pelu (1991) 8 NWLR (Pt. 211) page 523; B.ON v. Na’ Bature (1994) 1NWLR (Pt.319) 235 and Ukwu v. Offorah (1992) 6 NWLR (Pt.246) 233, Besides, I will like to add that the order of possession was not amongst the reliefs granted by learned trial Judge. The orders made are contained on page 101 of the printed record of proceedings, and possession is not one of them. The argument that the trial Judge granted relief not sought is thus not tenable.

This judgment will not be concluded without a comment or two on the grounds of appeal in the appellants’ notice of appeal. The grounds and particulars are like reproducing the proceedings in the lower court and condensing them into what was labelled notice of appeal. It is so prolix and unnecessarily repetitive that it has turned out to be another record of proceedings. A good ground of appeal must be concise, elegantly drafted and straight to the point that as soon as it is read the error and misdirection complained against can be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading the particulars as is wont to do in this case. It should also not be too argumentative. This is exactly what the present grounds of appeal are. Once the issue to be raised in each ground has been raised, that will suffice. There is no need to state irrelevant and unnecessary facts into the grounds. This Court and the Supreme Court have in a host of authorities criticised such grounds, but counsel in general do not seem to pay much attention to the Courts’ directives. See: Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) page 718.

This is one of the cases which an Appeal Court must disturb, for the finding of the trial court are perverse and not supported by evidence. It is trite that where a trial Judge based his findings on facts and evidence not before him the judgment is frought with errors and misdirections, for such findings are bound to lead to miscarriage of justice. In such a situation, as in the present appeal, the Court of Appeal is constrained to upset the judgment. See: Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) page 360; Ebba v. Ogodo (1984) 1 SCNLR 372 and Alade v. Ogundokun (1992) 5 NWLR (Pt.239) page 42.

The end result is that this appeal succeeds. The judgment of Oduntan, J. of the Ogun State High Court is hereby set aside. I assess costs at N2,000 in favour of the appellants against the respondents in this Court, and N4,000 in the Court below.

---

Other Citations: (1996)LCN/0247(CA)