Alhaji Akanbi Olaleye & Anor V. Jimoh Adejumo & Anor (2004)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A.
The two appeals in this case were separately initiated by notices of appeal of the 1st and 2nd defendants against the judgment of Somolu, J. of Ilaro Judicial Division of the High Court of Justice, Ogun State. The judgment which was peculiarly titled ‘Ruling and judgment’ was delivered in favour of the plaintiffs on the 23rd day of April, 1991.
In paragraph 20 of the amended statement of claim in which the two plaintiffs sued for themselves and Olaonipekun Adejumo family of Odan Agbara the following reliefs were sought against the two defendants:
“1. Declaration that the plaintiffs are the persons entitled to the right of occupancy of all that piece or parcel of land situate at Odan Agbara village which piece or parcel of land is shown on plan No. APAT/06/159/1987.
2a. Declaration that any notice of acquisition, and compulsory acquisition of the land in dispute under the Public Lands Acquisition Law of Ogun State, is unconstitutional, ultra vires, irregular, null and void.
2b. Any lease of the land in dispute to the second defendant is also irregular, unconstitutional, null and void.
3. N11,000.00 being general damages for trespass committed and being committed by the defendants, their servants and/or agents on the said land.
4. Permanent injunction restraining the defendants, their servants and/or agents and privies from committing further acts of trespass on the land.”
The 1st and 2nd defendants separately filed and exchanged statement of defence which was subsequently amended wherein they joined issue with the plaintiffs of the reliefs sought against them.
The case was set down for hearing in the lower court. The plaintiffs, the 1st defendant and 2nd defendant led evidence by calling four and three witnesses respectively.
The salient aspects of each of the parties’ claims shall be set out briefly. Thus, it is the plaintiffs’ case as per the testimony of the P.W.1, Mr. A. B. Apatra, a licensed surveyor that he prepared the survey plan (exhibit A) of the land in dispute. The P.W.2, Mr. Jimoh Liasu, a farmer, testified that he is a principal member of the family of Olaonipekun Adejumo, also known as Oloje. The Adejumo’s great ancestor – Olaonipekun – who was a farmer, settled on the land in dispute situate at Ago-Eyo 300 years ago. Olaonipekun cultivated cash crops such as cocoa, kolanut trees, oranges, coconut trees, banana and palm trees on the land in dispute. With the demise of the original settler, his successors continued in his trade of farming. The plaintiffs’ family found out that during the construction of Lagos/Badagry Express Motor Way, that Alagbe had trespassed on the family land and he was accordingly sued in Ado customary court. The proceedings and judgment in that court are in evidence as exhibit C.
He further testified by admitting that his family pulled down the boundary wall built by the 2nd defendant who they alleged was a trespasser. Chief Lawson refuted the allegation of trespass against the 2nd defendant. He instead said that the land alleged to have been trespassed upon by the 2nd defendant was sold to him by the 1st defendant. The extent of the area of land purchased by Chief Lawson from the 1st defendant was 51/ hectares. Chief Lawson pleaded with the plaintiffs to re-sell the said parcel of land to him and they agreed as evidenced by the memorandum of agreement (exhibit D).
On being cross-examined, the PW.2 admitted that the Agunbiekun and his family assisted the Alase to ward off the Dahomians warriors. Thereafter, Agunbiekun and his family were allowed to settle in Agbara and produce the Oba of Agbara. He could not tell who, between the ancestors of the plaintiffs and the 1st defendant settled at Agbara first.
The P.W.2 further testified that the only grouse against the 2nd defendant is that Chief Lawson has not fully paid for the land resold to him. As at 18th of April, 1990 when he testified, the P.W.2 said that he was not aware of any public acquisition of Agbara land by Ogun State Government in 1979.
The P.W.4, Mr. Ramoni Nosiru, a farmer and one of the great grandchildren of Olaonipekun Adejumo testified that he knew the land in dispute and the 1st defendant. He asserted that the Olaonipekun Adejumo family had been the owner of the disputed land from time immemorial as that family was the first to settle on it on migrating into Agbara which was then known as Ago-Eyo from Oyo. Succeeding generations without specifying any name inherited the land in dispute and practiced the family trade of farming thereon. His ancestors did not pay tribute to anybody as overlord for all the years.
Some time later, Mr. Samson Alagbe also known as Aladi bulldozed the land in dispute by destroying all the economic crops. The plaintiffs sued Mr. Samson Alagbe. The proceedings and judgment of that suit are reflected in exhibit C. He confirmed that the land in dispute was sold to Chief Lawson who paid only half of the purchase price with a promise to pay the balance of the purchase price after ownership of title had been resolved in the extant suit in court.
The D.W.1 for the 1st defendant, Chief Sunmonu Oduaba of Isale Agbara said that he knows the plaintiffs, the 1st defendant and the land in dispute. The 1st defendant who is a member of Aina Agunbiekun is the owner of the land in dispute and his boundary man. The land in dispute originally belonged to Alashe (Aladi) family from which Agunbiekun Oduaba and the plaintiffs (Adejumo) families derived title. The D.W.1 enumerated his own boundary men as including Idoluba.
As regards the acquisition of vast Agbara land by Ogun State Government in 1977, the D.W.1 said that he is aware of it. On being cross examined by the learned counsel for the plaintiffs, the D.W.1 admitted that the entire Oduaba family had through him sold the Agbara Estate to Chief Lawson. He said that from transmitted history, the grant of land by Aladi family to the plaintiffs’ family was made about 150 years ago.
The grant of land, however, proceeded that of the plaintiffs. He emphatically asserted that although the plaintiffs had been cultivating on the disputed land since it was granted to them, the village which the plaintiffs’ family established for themselves in Agbara does not extend to the land in dispute. The land in dispute is a distance of about one mile from the village called Odan Agbara established by the plaintiff’s family. He denied the existence of Ago-Eyo village nor knowledge of Ketu village in Agbara. He denied the suggestions that the plaintiffs’ family settled on the land in dispute as a virgin forest. He further denied that the plaintiffs’ family planted palm trees and Iroko trees. He, however, admitted that members of the plaintiffs’ family were allowed to plant subsistence crops such as cassava et ce tera.
At this stage, Adeoti, Esq., the learned counsel for the plaintiffs sought leave of court to withdraw the plaintiffs’ suit against the 2nd defendant. A. Adesokan, Esq., the learned counsel for the 2nd defendant did not oppose the oral application but on condition that the case be dismissed based on the state of the parties’ pleadings and the extent of hearing as at the date the application was made on the 4th of July, 1990. Adeoti, Esq., was apparently uncomfortable with the condition set out by the learned counsel for the 2nd defendant and he withdrew his viva voce application!
The D.W.2 for the 1st defendant, Chief Akanni Alase of Alase’s compound, the incumbent Chief Alase Agbara testified that he knew all the parties to this case. Thus, the 1st defendant who is a descendant of Olugboye and Agunbiekun. Agunbiekun was a benefactor to his family (Alashe) through Apajuabe his (the D.W.2) great grandfather who rewarded him (Agunbiekun) with the grant of portions of Alase Apajuabe family land because of his prowess in suppressing the invaders from Dahomey who used Agbara market as their place of attack on every market day. To strengthen the title given to Agunbiekun, Apejuabe pleaded with the leader Agunbiekun not to return to his native Ile-Ife but that he and his family should establish and perpetuate Obaship in Agbara. That indeed was the origin of Obaship practice or culture of the Olugboye Agunbiekun family in Agbara to date.
As regards the 1st plaintiff, the D.W.2 further testified that although the 1st plaintiff was also granted land but it was not direct from Alashe family but through Aladi family who being friendly with the Aladi family sought for and was given land in Agbara. Oduaba also enjoyed the same hospitality from Alase family. The D.W.2 said that he was a party to the sale of his (Alase) family land at Agbara to Chief A.O. Lawson in 1975. He is aware that sometime in 1977 the Ogun State Government acquired virtually all the land comprised of in Agbara village. He, as the 8th Alase of Ilase Agbara is a paramount ruler and superior in status to Oba Olugboye of Agbara. He denied that Olaonipekun Adejumo also called Ojoje settled on the disputed land.
D.W.3, the 1st defendant, whose testimony is largely based on traditional history was on all fours with the evidence of the D.W.3. He mentioned his boundary men as Alagbe family and Oduaba family. He too admitted that some time in 1977 all the parcels of land comprised of and called Agbara were acquired by Ogun State Government. The acquisition which is still extant covers the land in dispute. The D.W.3 (1st defendant) denied the assertion that the ancestors of the 1st plaintiff were in Agbara before his family. He reiterated that it was the Ase (Alase) family that granted the disputed land to his ancestors.
Mrs. Adesola A. Adefope, the Managing Director of the 2nd defendant testifying as the 1st witness for it (the 1st defendant) said that the original name of the 2nd defendant was Lawson Nigeria Ltd. and she identified exhibit D of its certificate of incorporation while exhibit E is the photocopy of exhibit D. Chief A. O. Lawson is the Chairman of the 2nd defendant/company which is a property development company in both industrial and residential estates. In 1977, the Ogun State Government acquired a large expanse of land which included the portion of the land owned by the 2nd defendant. In 1978, the 2nd defendant was, on request, leased for 99 years the portion of the land earlier on acquired from it by Ogun State Government. The attendant deed of lease is in evidence as exhibit F .
Mr. Jubril O. Lukan, a lands officer in the Ogun State Ministry of Lands and Housing testifying as the second witness for the 2nd defendant identified the Gazette No.8 (exhibit G) in which the Ogun State Government gazetted over 3000 hectares of land in and around Agbara as having been acquired by it. He expatiated that the actual acquisition reflected in exhibit G was made in respect of all lands from their respective owners or those who claim to own or have an interest in them.
The D.W.3 for the 2nd defendant, Mr. Ayodele A. Adelaja, a surveyor in Ogun State Ministry of Lands and Housing, confirmed the fact of acquisition of land in Agbara in 1977. He was one of the surveyors who prepared the composite plan of the disputed land in relation to the portion of land in 1977 by Ogun State Government. The composite plan is exhibit H. The entire land in exhibit H falls within the land acquired by Ogun State government in 1977.
At the close of the case for the 2nd defendant, the learned counsel for the 2nd defendant and 1st defendant respectively addressed the trial court.
The learned counsel for the plaintiff, midstream in his final address filed a motion supported by affidavit seeking leave to file a third amended reply to the defence of the 2nd defendant. The amendment was to challenge the validity of the acquisition of the land in Agbara including the land in dispute made by Ogun State Government. The 2nd defendant opposed the application and filed a counter-affidavit. Arguments were proffered by counsel for both the plaintiffs and the 2nd defendant. The learned trial Judge reserved ruling which would be read at the time of reading the judgment.
The learned counsel for the plaintiffs thereafter concluded his address on 25th October, 1990.
In a considered ruling/judgment, the learned trial Judge on 23rd April, 1991 granted reliefs 1, 3 and 4 (supra) claimed by the plaintiffs. The learned trial Judge refused reliefs 2a and 2b and made a consequential order striking them out.
The 1st and 2nd defendants were dissatisfied with the judgment of the trial court and separately filed notices of appeal. Thus, the 1st defendant now the 1st appellant initially filed two original grounds of appeal. He later sought and got leave of this court to file and argue five additional grounds of appeal. The 1st appellant distilled the following five issues from the grounds of appeal for the determination of the appeal:
“1. Whether the learned trial Judge was justified in preferring the evidence of traditional history of the plaintiffs to that of the 1st defendant having failed to follow the long established guiding principle of resolution of conflicts in traditional histories and evaluation of evidence by trial courts?.
2. Whether the learned trial Judge was right too in granting the declaration of title and other unconditional reliefs sought by the plaintiffs only upon the inadequacy or weakness of the case of the 1st defendant as shown in the judgment?.
3. Whether the learned trial Judge was right in ascribing such probative value to the proceedings in suit No. AD/16/74 Exhibit C as assuring plaintiffs’ ownership of part of the land in dispute?.
4. Whether the judgment/ruling delivered by the trial Judge is not a nullity in view of the long period of time (7 months) between the conclusion of trial and judgment which had adversely affected the evaluation of evidence and findings of facts as well as the quality of the judgment in general?.
5. Whether the adverse comments made by the trial Judge in respect of the case and the person of the 1st defendant flow from what transpired during the trial as recorded by the learned trial Judge?.”
The 2nd defendant, now the 2nd appellant filed notice of appeal containing ten grounds. The 2nd appellant adumbrated the following five issues from the ten grounds of appeal:
“1. Whether it was proper for the learned trial Judge to have granted a declaration of title to the 1st and 2nd respondents having found that the land had already been acquired by the Ogun State Government?.
2. Whether the judgment of the learned trial Judge can be supported by the evidence placed before it especially on the traditional history of titles as proffered by the parties and the issue of trespass?.
3. Whether the judgment of the lower court which was delivered well outside the statutorily prescribed time for delivery of judgments (7 months) between the time evidence was concluded and judgment delivered occasioned a miscarriage of justice?. (sic).
4. Whether the decision of the learned trial Judge to grant the plaintiffs’ application to further amend their pleadings in the course of reading the judgment, in order to raise for the first time the issue of validity of the government acquisition of the disputed land, without offering the appellant the opportunity of a rebuttal, did not infringe upon the appellant’s right of fair hearing and will not thereby render the judgment liable to be overturned?; and
5. Whether the alternative finding of the lower court on the validity of the government’s acquisition of the disputed land can be supported and upheld in the circumstances?. ”
The two plaintiffs, now respondents jointly filed two briefs of argument in response to the separate briefs of argument filed respectively by the 1st appellant and the 2nd appellant.
The issues raised by the respondents in reply to the brief of argument of the 1st appellant are as follows:
“(1) Whether the trial Judge exceeded his binding duty of evaluation of conflicting traditional history by weighing evidence in support respectively on an imaginary scale and whether his comments on contemporaneous demean ours of witnesses can vitiate findings so made in the course of assessment of evidence?.
(2) Whether critical analysis of evidence of parties in an appraisal of the case before the court and whether a vilification of witnesses’ demeanours thereof can vitiate the unbiased findings of the court?.
(3) Whether the plaintiffs who have taken the advantage of admissions, contradictions, and inconsistencies of the defendants’ case can be said to have relied upon the weakness of the defendants or whether the law prevents the plaintiffs from taking such an advantage?.
(4) Whether the issue of 3 months delay or judgment can avail a case that has been vitiated on other grounds?.”
The issues identified by the respondents in response to the brief of argument of the 2nd appellant read:
“(1) Whether on a proper appraisal of evidence before the court and the applicable laws, the court was justified to accept the traditional history of the plaintiffs/respondents and incidentally the declarations and orders which it made?.
(2) Whether the application for an amendment to existing reply (or, amended reply during final address by the plaintiffs’ pleadings in line with evidence led and admitted or to raise points of law which call for determination in the action can be vitiated on the grounds that the ruling was read along with the final judgment?.
(3) Whether the delay in the reading of judgment beyond three months in the action included a miscarriage of justice?.”
I have perused all the issues raised in the four different briefs of argument reproduced above. I am of the view that the issues raised by the 1st and 2nd appellants are of moment for the determination of this appeal. I shall accordingly make use of those two sets of issues which are largely similar to each other and the issue on amendment of pleading which relates to the validity of the Ogun State Government acquisition of the disputed lands as raised in the 2nd appellant’s brief of argument.
At the hearing of the appeals, the learned counsel for the 1st and 2nd appellants and the respondent adopted and relied on their several briefs of argument seriatim and urged the court to allow the appeals or dismiss them.
The learned counsel for the respondent who filed what was titled ‘Answer to the 1st appellant’s reply brief’ conceded that such brief is not known to the law and withdrew it. The outlandish or irregular brief was accordingly struck out.
Issue 1 is on the propriety of the trial court preferring the evidence of additional history of the plaintiffs/respondents to that of the defendants/appellants on proof of title to the land in dispute. The learned counsel for the 1st appellant referred to paragraphs 3, 4 and 5 of the amended statement of claim and paragraphs 1, 7, 8, 9 and 10 of the amended statement of defence of the 1st defendant and submitted that both of them relied on traditional histories to sustain their claim of title to the land in dispute.
He argued that there is an irreconcilable conflict in the traditional histories of the parties. He referred to the trite principle of law that where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their beliefs. He further contended that in such a case demean our is of little guide to the truth. The best way to test each traditional history is by reference to the facts in recent years as established by evidence to decide which of the two conflicting histories is more probable than the other and cited in support the cases of Alade v. Awo (1975) 4 SC 215; Akpapuna v. Nzeka II (1983) 2 SCNLR 1, (1983) 7 SC 10 and Akunyili v. Ejidike (1996) 5 NWLR (pt. 449) 381 at 398.
Learned counsel for the 1st defendant contended that the learned trial Judge cast the guiding principles for resolving conflicting traditional histories to the wind. He instead from his judgment at page 117 of the record of appeal expressed an opinion before attempting to consider the evidence of the parties and their witnesses. Furthermore, he argued that in the course of the one sided evaluation of the evidence of the defendants/appellants and in particular that one of the 1st defendant the learned trial Judge dealt much with and belabored irrelevant issues as well as making unfounded conclusions from available evidence. He backed this up by arguing that the traditional history given by the 1st defendant and his witnesses were in line with his pleadings.
First, the 1st defendant did not plead the facts ascribed to him in some parts of the judgment.
Secondly, the 1st defendant’s first witness in particular did not concede that the land in dispute was also called Ago Eyo and that indeed under cross examination the said witness said, inter alia, ‘I don’t know the village called Ago Eyo’. The 1st defendant also testifying as the D.W.3 said under cross examination that ‘there is no Ago-Eyo in Agbara’.
The learned counsel was at sea to know where the learned trial Judge found the basis of his finding that the land in dispute is known and called Ago Eyo. He stated the undisputable principle of law that the evaluation of evidence and assessment of credibility of witnesses are primarily the responsibility of the trial court and that an appellate court will not disturb the findings of fact of that court (the trial court) except where they are shown to be unreasonable or perverse and not as a result of proper exercise of judicial discretion.
He cited in support of the foregoing the cases of Ntiario v. Akpan (1910) 3 NLR 10 and Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299, (1985) 3 SC 28 at 63. He reiterated that the cases of the parties at the lower court were passed on the evidence of traditional history. He argued that instead of resolving the conflict in the manner stipulated by decided cases, the learned trial Judge used demeanour of one of the parties that is to say the 1st defendant and his witnesses to conclude that his story could not be true and even unjustiably castigated the 1st defendant and his witnesses at every opportunity.
The learned counsel submitted that since the learned trial Judge approached the resolution of the conflicts in the traditional histories of the parties by reference to the demeanour of the 1st defendant and his witnesses and not by reference to the historical facts as established by evidence and since most of the findings of the learned trial Judge did not flow the state of pleadings and what transpired during the trial as recorded by the learned trial Judge, he urged upon the court that this is one of the occasions of perversity whereby the decision of the trial court on findings of facts should be set aside by virtue of the case of A. R. Mogaji & Ors. v. Madam Rabiatu Odofin (1978) 4 SC 91 in which the learned trial Judge made findings of facts upon the consideration of the case of only one of the parties.
The arguments of the learned counsel for the 2nd defendant are not dissimilar from that proffered on behalf of the 1st defendant. He particularly referred to the decision of the Supreme Court in the cases of Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490 and Adeyeri v. Okobi (1997) 6 NWLR (Pt. 510) 534 which stated that where there is conflict of traditional history, the demeanour of the parties is of little guide to the truth and the best way to test the traditional history is by reference to the facts in recent years as established by evidence.
He referred to all the statements at page 117 and submitted that they run contrary to the principle on evaluation of evidence enunciated in Mogaji v. Odofin (1978) 4 SC 91 which courts have followed over the years in civil proceedings. He argued that the learned trial Judge made no attempt to appreciate the evidence of particularly the 1st defendant and his witnesses and measure it against that of plaintiffs to see which should be preferred. He submitted that the learned trial Judge instead accepted the evidence of the two defendants. That approach, he further submitted runs against the grain of the decision in Anuforo v. Obilor (1997) 11 NWLR (Pt. 530) 661 where the court frowned at the attitudes of some trial courts which consider and demolish the defendants’ case before considering the case for the plaintiff.
Learned counsel pointed out that the allegation against the 2nd defendant/appellant is that it trespassed on the disputed land by building a demarcating wall on it and therefore liable in damages and a perpetual injunction restraining it from further acts of trespass. He referred to the plaintiffs’ 2nd and 4th witnesses who said that when the 2nd defendant erected the boundary wall, the family of the plaintiffs destroyed it. Chief Lawson, the Chairman of the 2nd defendant thereafter intervened on behalf of the 2nd defendant for amicable settlement.
The plaintiffs were appeased with the intervention and resold the 5.5 acres of land to 2nd defendant through Chief Lawson who had previously bought it from another party. Since the land had never at any time being in possession of the plaintiffs, they could not rightly succeed in an action for trespass or injunction. Aside this, he argued that the title of the 2nd appellant is not fortified by sale but also by the acquisition of the entire Agbara land in 1977 and subsequent release of part of it to the 2nd appellant. He urged the court to hold that since 2nd appellant is in possession of the land in dispute by virtue of available evidence and it could not be a trespasser.
The two appellants seriatim urged the court to allow the appeal. In reply on behalf of the 1st respondent, his learned counsel argued that in the instant judgment credibility or the truth of traditional history was not based on the demeanour of witnesses.
He reproduced a portion of the judgment which dealt with the opinion of the learned trial Judge that the appellant’s witnesses ‘smeared themselves and came to cut throat range of one another… and reliance became their strange bed fellow’ and argued that that did not connote basing judgment on demean our but a graphic illustration of the nature of the patent contradictions in the traditional history told by the appellants which rendered their evidence very incredible.
He submitted that the trial court endeavoured to and did make a proper appraisal of evidence, both oral and documentary, before it. He further submitted that the trial Judge equally evaluated the items of relevant evidence adduced by both sides. He urged the court to hold that the respondents proved their case on balance of probabilities and relied on the strength of their case rather than the weakness of the 1st appellant’s case.
With regard to the submissions of the 2nd appellant, the learned counsel for the respondents submitted in essence their on a proper appraisal of the evidence before him, the learned trial Judge justifiably preferred the traditional history of the respondents to that of the appellant and he relied on the time tested principle of law that where the trial court has properly appraised the case before it the appellate court shall refrain from interfering with it. He therefore urged the court to dismiss the appeal.
It is common ground that the case before the trial court was based on traditional history. Traditional history or traditional evidence is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim to have the land as their own or who defend a claim to such land. It can also be described as a somewhat ancient history which is replete with hearsay but which has been elevated to the status of admissible evidence by the statutory provision in section 45 of the Evidence Act. Section 45 of the Evidence Act reads:
“45. Where the title to or interest in family or communal land is in issue, oral evidence of family or communal tradition concerning such title or interest is relevant.”
See also Dike & Ors. v. Obi Nzeka II & Ors. (1986) 4 NWLR (Pt. 34) 144 at 158. It is trite that in order to establish traditional history of title to land in dispute relied upon, a plaintiff must plead the names of the founder and those after him when the land developed to the last successor and lead cogent and conclusive evidence in support without having gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. If the pleading and evidence fail to meet the foregoing standard, the claim to title to land by virtue of history will also fail. See Akinloye v. Eyiyola (1968) NMLR 92;Mogaji & Ors. v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393, Ezewusim v. Okoro & Anor. (1993) 5 NWLR (Pt. 294) 478.
In order to appreciate the claim of the parties to the clearly identified land in dispute, there is need to look at the relevant avertments made in their pleadings. Thus, the plaintiffs/respondents based their claim on paragraphs 2, 3, 4 and 5 of the amended statement of claim in which they averred that he sued the defendants/appellants in a representative capacity of Olaonipekun Adejumo family of Ado-Eyo Odan Agbara in Egbado Division of Ogun State. The land in dispute was originally settled on Ado-Eyo while Ilashe settled on a nearby land owing to differences in idol worship. Olaonipekun had from time immemorial exercised absolute acts of ownership without let or hindrance on the land in dispute.
The 1st defendant/1st appellant on his part made copious averments as reflected in paragraghs 7, 8, 9, 10, 11, 12, 13, 14, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 of the amended statement
of defence on how Apajuabe first settled on Agbara made up of Oke Agbara and Odan Agbara which included the land in dispute. Apajuabe in appreciation of the efforts of Aina Agunbiekun and his men in permanently warding off the incessant attacks on his land by Dahomeans granted the present site of Agbara to Aina Agunbiekun and even allowed him establish an Oba dynasty over Agbara. Other relevant averments relate to the descendants of Agunbiekun by names up to Alhaji Jimoh Olaleye who begat Akanbi Olaleye, the 1st defendant in this case. There is also averment on the boundaries men who are Oduaba and Aladi families. The two families and Agunbiekun’s family were the only families granted land in Agbara.
The plaintiffs and the 1st defendants testified along the lines of their averments. It will, however, be observed that out of the four witnesses who testified on behalf of the plaintiffs, only the P.W.2 who claimed to be a principal member of the plaintiffs said that Olaonipekun Adejumo or Oloje their great ancestor settled on a land called Ago-Eyo over 300 years. This witness, under cross-examination recognized the 1st defendant as a descendant of Olugboye family and the role his anscestors Agunbiekun played in warding off the attacks of the molesters. He admitted the Agunloye family of the 1st defendant rules as Oba of Agbara and owned houses there. He also admitted that Oduaba and Aladi families are boundary men on the land in dispute in Agbara. None of the two plaintiffs testified on how they settled on the land in dispute.
The 1st defendant on his part, copiously testified on his averment as the D.W.3 and he, among other things, said that there was no place like Ago-Eyo to which the plaintiffs laid claim. There is sumptuous history of the land in dispute by the D.W.1 and the D.W.2. Thus, the D.W.1 testified that he is one of the boundary men to the 1st defendant on the land in dispute. The other boundary man was Aladi. The two boundary men were granted their parcels of land over 150 years but before the plaintiffs’ grant. The D.W.2, Chief Akanni Alase, who is the current Chief Alase of Alase Agbara testified that he is the descendant of Apajuabe, the original settler on Agbara land, who granted portion of Agbara land to the ancestors of the 1st defendant.
It is apparent from the foregoing that the traditional evidence adduced by the respondents fell short of what the principle enunciated in the case of Ezewusim v. Okoro (supra) at page 499 because particulars of intervening owners through whom the plaintiffs claimed were not stated. All that the plaintiffs averred and testified upon was that their (the plaintiffs’) ancestor, Olaonipekun Adejumo, settled on the land in dispute. The 1st defendant/appellant on the other hand, meticulously testified by tracing his title to the land in dispute for a period which spanned over 150 years by naming the intervening owners up to himself without being seriously controverted.
There is therefore no doubt that the 1st defendant/appellant adduced preponderant evidence on his claim to the land in dispute yet the learned trial Judge opined on ownership, inter alia, at pages 117 and 118 of the record:
“In answering the poser, how tested is the story of each party to this proceeding as to their various claims of ownership and/or derivation of entitlements to portions of land which each has claimed, it is shown on record that the battle is for the strong. The strongest will thereby survive. Whereas 1st, 2nd, 3rd, and 4th plaintiffs’ witnesses were fully tested, re-examined and cross-examined (irregular sequence!), they appear to me to have honourably withstood the rigours of those exercises and reasonably well too for their cause. On the other hand, the 1st defendant and his two witnesses fared fairly well to a point that they smeared themselves and came to cut that range of one another. Credibility went in flight from them (all three) and reliance ultimately became their strange bed fellow.”
I agree with the learned counsel for the 1st appellant that the foregoing opinion is in contradiction to the principle laid down in Mogaji v. Odofin (supra) on evaluation of evidence. The principle is succinctly put, that a Judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first put the totality of the evidence of both parties on an imaginary scale and then see which is heavier not by number of the witnesses called by each party but by the quality of probative value of the testimony of those witnesses.
In determining which is heavier, the trial Judge shall have regard to the admissibility, relevance, credibility and conclusiveness of the evidence adduced by the parties. In the instant case, the trial court was not guided by the principle of traditional history on which the plaintiffs/respondents based their title to land by pleading the names of the successors to the founder up to the last successors nor was evidence led in support before concluding that the matter before him was a battle where the strongest would survive. I disagree with him for liking litigation to armed conflict where those superior in arms and mastery of them would carry the day. It is instead a matter that would clearly be resolved on preponderance of admissible, credible and conclusive evidence. The case for the 1st appellant carried all those attributes.
Apart from the glaring disregard for the time tested principle on evaluation of evidence, the learned trial Judge recoursed to using demeanour in the resolution of traditional history in granting title to the respondents. This conclusion is gleaned from page 118 of the record where he said inter alia:
“It is the readiness and glee by which they succumbed or made occasional vital concessions or recanted and addicted deceit at seeming cross-examination not to take their apparent unseriousness at crucial moments in the witness box that became the eye-opener for my focusing on their demeanour and piercing through them to be able to see them as willing suborned compatriots of the 2nd defendants. ” (Italics mine for emphasis)
I do not, in the face of the foregoing extracts from the judgment of the lower court, agree with the learned counsel for the respondents that the trial court did not base its judgment on the demeanour of the witnesses for the appellant by the use of the words ‘unseriousness and demeanour suborn and can’t’ apart from some other intemperate words. It is settled that where the dispute in a suit is on traditional history which had been handed down by word of mouth from one generation to another, it must be recognized that in the course of the transmission, mistakes may occur without dishonest motives. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years earlier. Where there is that conflict one side or the other must be mistaken, yet both may be dishonest in their belief. In such a case demeanour is little guide to the truth.
The best way is to test the traditional history by reference to facts in recent years as established by evidence to see which of the two histories is more probable. See Kojo II v. Bonsie (1957) 1 WLR 1223, Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490, (1997) 5 SCNJ 13 at 19 and Adeyeri v. Okobi (1997) 6 NWLR (Pt. 510) 534, (1997) 6 SCNJ 67 at 77. The learned Judge has, with due regard, failed to apply the correct principle in resolving conflicting traditional histories on claim to title to land by spending considerable time on the demeanour before him. The demeanour of witnesses in the circumstances of this case is not a proper guide to assess the probative value of their evidence. I am of the strong view that, based on the evidence before the trial court, the learned trial Judge failed to properly evaluate the evidence and thereby fell into error of law. I shall thereby interfere and hold that the appellants adduced more probative evidence than the respondents. I accordingly resolve issue 1 in favour of the appellants.
Since issue 2 is based on the inadequacy or weakness of the case of the appellants and I have held that the said parties and particularly the 1st appellant adduced conclusive evidence of ownership of the land in dispute, it (the 2nd issue) like the 1st issue is also resolved in favour of the appellants.
Issue 3 is whether the learned trial Judge was right in ascribing probative value to the proceedings in the suit No. AD/16/74 (exhibit C) by saying it (exhibit C) ‘assures’ ownership of the land claimed by the plaintiffs. This issue is peculiar to the 1st appellant. The respondents did not proffer any argument on it.
The learned counsel for the 1st appellant argued that it is clear on the face of exhibit C that the title to the disputed land was not awarded to the plaintiffs by the Ado/Odo Customary Court. The defendants in that case who were Samson Alagbe and Salmon Fasina were not parties in the instant case. He therefore submitted that it is difficult to understand the rationale in the finding of the learned trial Judge that the proceedings in exhibit C assured ownership of the land in dispute to the plaintiffs/respondents. He urged the court to hold that the finding is perverse as exhibit C does not assure any ownership of the land in dispute to the respondents.
A hard look at exhibit C which is the proceeding in suit No. AD/16/74 did not show that the defendants/respondents in the instant case were parties to it. The P.W. 2 and P.W.4 who testified on exhibit C in this case did not say the judgment there was in favour of the plaintiffs in this case. I have read exhibit C in which the plaintiff, Jimoh Adejumo claimed N200.00 as general damages against the defendants, Samson Alagbe and Salmon Fasina, for damage done to his kolanut trees and palm trees at Oke Eyo in Egbado Division in March 1974. The trial court in that case struck out the plaintiff’s case. Despite this scenario as reflected in exhibit C, the learned trial Judge in the instant case held at page 117 of the record as follows:
“Exhibit C which is the proceeding originated by members of plaintiffs’ family against Samson Alagbe and one Salmon Fasina in suit No. AD/I6/74 assures ownership of the land claimed thereon in plaintiffs’ family. The said land of plaintiffs’ family with which the land in exhibit C suit No. AD/16/74 forms part is said to be represented by plaintiffs’ plan therein. (Italics mine for emphasis).
It is apparent from the foregoing that there was no basis for the learned trial Judge, with due regard, to hold that the trial Customary Court, Ado Odo of which exhibit C formed part of its proceedings in suit No. AD/16/74 did not on perusal decide that any land was ascribed or assured to the plaintiffs. The plaintiffs’ claim in that case was instead struck out. The conclusion of the trial learned Judge in this case was therefore not borne out by experience. It is perverse. The trial court was thereby in error to have ascribed to exhibit C what it does not portray. Issue 3 is resolved against the respondents.
Issue 4 is on delay of seven months before the trial court delivered its judgment in the instant case. The learned counsel for the appellants, albeit, separately submitted that the long period of seven months between the conclusion of the trial and judgment had adversely affected the understanding of the learned trial Judge as regards the case of the parties and specifically that his impression of the witnesses had been blurred. The learned counsel mentioned instances of the distorted memory of the learned trial Judge which could occasion miscarriage of justice.
In reply, the learned counsel for the respondent referred to section 258(i) of the Constitution of the Federal Republic of Nigeria, 1979 and submitted that were a party’s claim has failed on other grounds no miscarriage of justice can be sustained. He argued that a delay beyond three months after the conclusion of address cannot be set aside by virtue of section 258(4) of Decree 107 of 1993.
The relevant constitutional provision on issue 4 is section 258(4) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) hereinafter referred to (Amended 1979 Constitution). It reads:
“(4) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice.”
The purport of the foregoing provision is that it can be invoked at the appellate court on condition that the complainant and/or appellant satisfied the court that by such non-compliance he has suffered miscarriage of justice. It is not enough to show that evidence was not properly evaluated, it must be shown that facts were not properly remembered or summarized by the trial court. See Egwu v. Egwu & Ors. (1995) 5 NWLR (Pt. 396) 493 at 505.
It is also trite to say that miscarriage of justice occurs only where there are substantial errors in the adjudication with the resultant effect that the party relying on such errors likely have a judgement in his favour, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 at 112, Okonkwo v. Udoh (1997) 9 NWLR (Pt. 519) 16. It is further trite that a miscarriage of justice should be declared only when the court, after an examination of the entire case including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error.
In order to ascertain whether or not a miscarriage of justice had been occasioned by the delay of about seven months before the trial court delivered its judgment, I shall examine the entire case in the record of appeal alongside the instances identified by the learned counsel for the appellants in their briefs of argument. I have perused the briefs of argument of the appellants and found that instances of alleged miscarriage of justice are legion. I shall, however, mention only a few. First, the learned trial Judge wrongly assumed at page 117 of the record that exhibit C confirmed ownership of the disputed land in the respondents whereas there is no record to support this seemingly vital conclusion. It is not in doubt that this conclusion was the basis for holding that the respondents had better and stronger title over the land in dispute than the appellants.
Secondly, the learned trial Judge held at page 118 of the record of appeal that the 1st appellant and his witnesses smeared themselves and lacked credibility and made occasional vital concessions. There is no part of the record where the derogatory assertion could be supported by evidence. It is not unlikely that the Judge’s remark were in relation to a completely different proceeding from the case in point.
Thirdly, the trial Judge at page 119 of the record held that the 1st defendant alluded to there being three families that settled on the land in dispute. There is no such evidence in the record of appeal. What indeed the 1st defendant said, as reflected on page 66, is that there are three ruling houses at Agbara.
Fourthly, the learned trial Judge held that no member of the Aladi or Oduaba families testified at the trial. This assertion does not reflect what is on pages 59 and 62 where a member of Oduaba called Chief Aliyu Sunmonu Oduba testified as the D.W.1 and in essence said that he is a boundary man to the 1st defendant who is the owner of the land in dispute.
I am satisfied that these instances are substantial errors which if they had not been committed by the learned trial Judge in his judgment, there would have been sound premises to dismiss the plaintiffs/respondents’ case. It is trite that if it is shown on the record of appeal that the trial Judge lost his impression of the proceedings or failed to take proper advantage of the witnesses as a result of the delay complained of, the appellate court will set the judgment aside, as that would amount to a good instance of a miscarriage of justice. See Egbo & Drs. v. Agbara & Drs. (1997) 1 NWLR (Pt. 481) 293.
The instances referred to above as well as several others in the record of appeal are strong pointers to the fact that the learned trial Judge, with due regard, as at the time he delivered judgment some seven months after the final addresses by counsel he had lost all focus or recollection of what transpired in his court in respect of the instant case. It is therefore little wonder when the learned trial Judge said in his judgment that he only set out on a salvage operation. In view of the foregoing, I am of strong opinion that the judgment of the lower court is replete with instances of unimpeachable miscarriage of justice which will only attract being set aside. I resolve issue 4 against the respondent and set aside the judgment of the trial court.
In view of the substantial miscarriage of justice in this appeal, not much will be achieved in considering at any great extent the issue of the propriety of amendment of pleading at the address without giving the appellants the opportunity to react to the order to amend as well acquisition of Agbara Estate which included the land in dispute by the Ogun State Government in 1977. Suffice it to say that the amendment was irregular as it smacked of denial of justice to 2nd appellant because it (the 2nd appellant) was denied the opportunity to meet the new matter. These two issues are also resolved against the respondent in favour of the appellants. In the final analysis, I find merit in each of the two appeals and they are allowed seriatim. The judgment of the trial court is set aside. Costs of N5,000.00 are assessed in favour of each appellant against the respondents.
Other Citations: (2004)LCN/1590(CA)