Alhaji Jimoh Odutola V. Caleb Sanya & Ors (2007)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered by Hon. Justice M. O. Ojo while sitting at the High Court of Justice, Ijebu-Ode, Ogun State of Nigeria on 27th November, 2002. The learned trial judge found in favour of the defendants, herein referred to as respondents, and dismissed the case of the plaintiff who is the appellant herein.
It is desirable at this point to recapitulate, albeit, briefly the facts, as assembled at the trial court, which led to this appeal.
The claims of the plaintiff as contained in his 1st Further Amended Statement of Claim at page 66 of the transcript record of appeal read as follows:-
“1. Declaration that the plaintiff is entitled to the Customary Right of the Certificate of Occupancy in respect of the piece or parcel of farm land situate, lying and being at Odo-Isielu via Idowa, shown on Plan No. FF080/09/96.
- An order of forfeiture against the defendants in respect of the piece or parcel of farm land situate, lying and being at Odo Isielu via Idowa.”
Based upon pleadings which were filed and duly amended by the parties, the case proceeded to hearing before the learned trial judge. The plaintiff called three witnesses and also testified on his own behalf. The defendants called one witness and the 1st defendant also adduced evidence at the trial court.
The plaintiff maintained that the farm land in dispute originally belonged to Osiyelu; the original name of the land being Odo-Osiyelu. Osiyelu begat Osiade, a male; Odujoke, a female, and Kuyagba, a male. Odujoke begat Seyin who begat Odutola, the plaintiffs father. The plaintiff, as DW4, testified that under Ijebu Native Law and Custom, it is the child of a female who inherits their father’s property; hence Seyin inherited the land of Osiyelu. He maintained that the defendants’ fore-bears got onto the land as a result of in-law relationship.
The defendants, on their part, maintained that it was one Ogbun Ramusegun who founded Odo-Ogbun which forms part of Odo-Isielu but separated by a river. They further contended that Odo-Isielu was founded by Oba Ijasi who granted same to Ogbun Ramusegun in exchange for traditional ornaments which Oba Ijasi borrowed from Ramusegun and could not return the items due to a fire incident which destroyed his house. The defendants’ forebears have ruins of their houses on the land. Ogbun’s children and grandchildren have been planting various crops and erecting buildings on the land without hindrance.
After the learned trial judge garnered evidence from both sides of the divide, he was properly addressed by learned counsel for the parties. In his reserved and considered judgment delivered on 27th November, 2002, he found in favour of the defendants and dismissed the case of the plaintiff.
The plaintiff felt unhappy with the stance posed by the learned trial judge and has appealed to this court vide his Notice of Appeal dated 21st February, 2003. The said Notice of Appeal which was filed on the same date carries seven (7) grounds of appeal.
The relief sought from this court by the appellant is – ‘to set aside the judgment of the High Court of justice Ogun State and grant the plaintiffs reliefs as claimed in his 1st Further Amended Statement of Claim’.
When the appeal fell due for hearing on 20th March, 2007, Senior Counsel for the appellant adopted and relied on the Appellant’s brief of argument dated and filed on 17-11-04 as well as appellant’s Reply Brief filed by leave of court on 7-3-06. Learned counsel for the respondents adopted and relied on the Respondents’ Brief of Argument dated 16-6-05 and filed on 20-6-05.
The four issues distilled for a proper determination of the appeal on behalf of the appellant read as follows:-
“(i) Whether in the state of pleadings and evidence proffered, the plaintiff has not proved custom of Ijebu as to inheritance of female child and customary tenancy.
(ii) Whether in the circumstance of the state of pleadings and the nature of evidence of traditional history on title to land before the court, the conclusion made by the learned trial judge on the issue of title can stand.
(iii) What is the effect of defence of acquiescence which is unsupportable by any evidence?
(iv) Whether having regard to the available evidence before the court the learned trial judge’s findings and conclusion are not perverse and whether the plaintiffs claim ought not to have been granted.”
On behalf of the respondents, the five issues decoded for determination of the appeal read as follows:-
“1. Whether from the evidence adduced at the trial, the trial judge was wrong to have dismissed the case of the appellant.
- Whether the trial judge was wrong to have decided that the appellant has not proved the custom of inheritance in Ijebu-land whereby the female child of the parents inherits the landed property of their father.
- Whether the trial judge properly evaluated the evidence led at trial.
- Whether the trial judge was wrong to have held that the defence of acquiescence avails the respondents.
- Whether the trial judge’s findings were perverse. ”
To my mind, issues 1, 3 and 5 formulated on behalf of the respondents appear hair splitting. They both relate to evaluation of evidence by the learned trial judge. As an appeal is not won by sheer number of issues raked up, I seriously feel that proliferation of issues by parties should be avoided to conserve time and much needed energy. I intend to treat issues 1, 3 and 5 together in this judgment.
On page 2 of the Respondents’ brief of argument, learned counsel maintained that issues for determination must be distilled from the grounds of appeal. He cited Aja Mazi Aja & anr. v. John Okoro & 3 ors (1991) 7 NWLR (Pt. 203) 260, 262; S. A. Bakare v. Lagos State Civil Service Commission & anr (1992) 8 NWLR (Pt. 262) 641 at 656, 687. Learned counsel opined that no issue was formulated on grounds 1, 2 & 3 of the grounds of appeal. He felt that the stated grounds of appeal are abandoned and all arguments on them should be ignored. He cited Hon. E. O. Araka v. A. N. Ejeagwu (2000) 4 NSCQR (Vol. 4) 308, 309-310, 320.
In the appellant’s reply brief of argument, learned counsel therein, in essence, pointed it out that issue 1, as couched by him, flows out of grounds 1 and 2 of the grounds of appeal. In the same fashion, he feels that issues 2 and 4 emanate from grounds 3, 4, 5 and 7 of the grounds of appeal.
It is apt to reproduce grounds 1, 2, 3, 4, 5 and 7 of the grounds of appeal without their particulars for adequate appreciation. They read as follows:
“(i) The learned trial judge erred in law when he held that there is no customary tenancy between the plaintiff and the defendants when there was evidence on record supporting customary tenancy.
(ii) The learned trial judge misdirected himself in law when he held that the plaintiff has not strictly proved the existence of the alleged custom of inheritance in Ijebu Land whereby the female child of the parents inherits the landed property of their father.
(iii) The learned trial judge erred in law when he failed to make a finding as to whether Osiyelu, the plaintiffs ancestor or Ogun Ramusegun, the defendants’ ancestor first came and settled on the land in dispute.
(iv) The learned trial judge erred in law when he held that since Ijasi people own adjourning land in the southern part of the land in dispute, it is very probable that the land in dispute was granted by Oba Ijasi to the defendants.
(v) The learned trial judge misdirected himself in law when he dismissed the plaintiffs claims without giving adequate consideration to the historical root of title of the plaintiff as pleaded, which has occasioned a miscarriage of justice.
(vii) The judgment is against the weight of evidence.”
Earlier in this judgment, I reproduced, in verbatim the issues formulated on behalf of the appellant. For ease of reference, I need to reproduce issue 1 again as follows:
“(i) Whether in the state of pleadings and evidence proffered, the plaintiff has not proved custom of Ijebu as to inheritance of female child and customary tenancy.”
A clear reading of the above reproduced issue I formulated on behalf of the appellant shows that it has a double barrel effect. It touches on proof of custom of Ijebu as to inheritance by a female child. As well, there is the point which touched on customary tenancy. I feel strongly that it should have been appreciated by the learned counsel for the respondents that the issue flows from grounds 1 and 2 of the grounds of appeal as reproduced above without much ado. The two grounds of appeal are in order.
To be candid, I cannot see any issue which flows out of ground 3 of the grounds of appeal as reproduced above. No issue relates to whether Osiyelu, the plaintiffs ancestor or Ogbun Ramusegun, the defendants’ ancestor first settled on the land in dispute. It must be taken that ground 3 of the grounds of appeal is abandoned. As well, argument in respect of same should be discountenanced. Refer to Hon. E. O. Araka v. A. N. Ejeagwu (supra) cited by respondents’ counsel.
Learned counsel for the appellant, rightly in my view, argued issues 2 and 4 together. Learned counsel maintained that in determining which of the two sets of evidence is weightier, a trial court must consider whether or not such evidence is admissible, relevant, cogent and credible or whether it is more probable than that given by the other party. He cited Olanloye v. Fatunbi (1999) 8 NWLR (Pt. 614) 228.
Learned counsel submitted that it is the duty of the trial court to assess evidence and give same probative value. He cited Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 20. He felt that from the pleadings of the plaintiff and evidence adduced, the land in dispute was where Osiyelu settled. He opined that where a claimant pleads that the land was acquired by settlement, there can be no question of original owners. He strongly felt that where traditional evidence including that of first settlement is satisfactorily placed before the court and is accepted, title to land can be declared on such evidence of tradition alone. He cited Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 220; H. O. Oluyole v. Olofa (1968) NMLR 462.
Learned counsel submitted that the plaintiff/appellant proved the founder of the land; how it was founded and gave the particulars of intervening owners through whom he claims. He cited Achiakpa v. Nduka (2001) 14 NWLR (Pt. 623) 653; Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386.
Learned counsel felt that minor inconsistency as to who founded the land between Osiyelu or Seyin should not diminish the credibility of the plaintiffs evidence. He referred to Odunukwe v. Ofomata (1999) 6 NWLR (Pt. 607) 406 at 425; Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 50.
Learned counsel further submitted that the learned trial judge wrongly relied on issue of contiguity between Ijasi peoples’ land and the southern part of the land in dispute and erroneously relied on section 45 of the Evidence Act. He cited Adornba v. Odiase (1990) I NWLR (Pt. 125) 165 at 180.
Learned counsel for the respondents also referred to Anyanwu v. Mbara (supra). He observed that the evidence of the plaintiff contradicted the evidence ofP.W.2 and P.W.3 as to who founded the land in dispute. The appellant maintained that the land was founded by Osiyelu while his witnesses said it was founded by Seyin. He felt that the case of Odunukwe v. Ofomata (supra) cited on behalf of the appellant is not in point. He submitted that no court will grant a declaration of title on the fatally contradictory evidence and that the trial court was right in dismissing the claim for declaration of title.
Learned counsel maintained that there is no evidence of how Osiyelu founded the land. He also felt that there is no evidence of the particulars of intervening owners through whom the appellant claims.
As regards claim for forfeiture, learned counsel maintained that same is predicated on the claim for declaration of title and since that claim failed, that for forfeiture must also fail.
Learned counsel submitted that the learned trial judge properly reviewed the evidence led and evaluated same; placed them on an imaginary scale before arriving at his decision. He cited, among others, the cases of Chief Igbodim & 2 ors v. Chief U. Obianke (1976) 9 & 10 SC 179 at 191- 193; Situ Abibu v. Karimu Rinutu & anr (1988) 1 SC 136, 153 & 159.
Learned counsel felt that the findings made by the learned trial judge were not perverse as same were supported by evidence adduced at the trial.
He cited State v. Ajie (2000) II NWLR (No part) 434; NEPA v. Ososanya (2004) 17 NSCQR (Jan-March) 273, 277,292. Learned counsel felt that the case of Alesinloye v. Olofa cited by the appellant is not apposite.
I need to state it here that whenever title to land is in dispute as in this case, the Supreme Court has set out five ways of proving ownership to same in the case of Idundun v. Okumagba (1976) 9-10 SC 227. They are:
- By traditional evidence.
- By production of document of title duly authenticated and executed.
- By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant an inference of true ownership.
- By act of long possession and enjoyment.
- By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. The case of Idudun v. Okumagba (supra) was closely followed by Piaro v. Tenalo (1976) 12 SC 31. See also Mogaji & ors v. Cadbury (Nigeria) Limited (1985) 2 NWLR (Pt. 7) 393; Fasoro & anr v. Beyioku & ors (1988) 2 NWLR (Pt. 76) 263 and Oladipupo & anr v. Olaniyan & ors (2000) 1 NWLR (Pt. 642) 556 at 564.
It is not compulsory for a plaintiff to prove all the five enumerated ways as listed above to be entitled to judgment. It will suffice, if he proves one of the five ways. But he must prove his title by cogent, satisfactory and conclusive evidence. See Onibudo v. Akibu (1982) 7 SC 60; Aikhionbare v. Omoregie (1976) 12 SC 11.
In this appeal, the appellant tried to bank on traditional evidence. As plaintiff, he can only succeed on the strength of his case and not on the weakness of the defence, if any; since there is no counter-claim. Refer to Kodilinye v. Odu (1935) 2 WACA 336. However, if the defendants’ evidence supports that of the plaintiff, he is entitled to rely on same to fortify his case. See Akinola v. Oluwo (1962) All NLR 242.
In this matter, the plaintiff who testified as PW4 gave the name of the founder of the land in dispute as Osiyelu. He did not state the mode of founding. P.W.2 and P.W.3, on their own part, gave the name of the founder as Seyin and they were very serious about it. This was contrary to the plaintiffs pleadings.
It is clear to me that the plaintiffs story called traditional evidence is a web of contradictions and uncertainty. I am at one with the learned trial judge that the plaintiff adduced two competing and conflicting traditional histories of his ownership of the land in dispute. The conflict dealt a devastating blow on the plaintiffs case. The conflict is not inconsequential.
It goes to the root of the matter. I agree with the learned trial judge that no court will grant the plaintiffs claim on his conflicting and contradictory evidence. On this score alone, the case was rightly dismissed by the learned trial judge. See Mogaji v. Cadbury (Nig) Ltd. (supra) where in a similar situation, the apex court held that where a party adduces two competing histories of his ownership, he has failed to make out a case and his claim must be dismissed. See Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 301; Nwofor v. Nwosu (1992) 9 NWLR (Pt. 264) 229.
The above is not the end of it even on this point. The plaintiff said Osiyelu settled on the land in dispute. The mode of founding or discovery was not pleaded with certainty. See Anyanwu v. Mbara (supra). It is not the duty of the trial court to extend or embellish averments in pleadings where they are defective. Insufficiency of pleading had a devastating and adverse effect on the plaintiffs claim. I cannot impugn the conclusion of the learned trial judge in dismissing his claims.
Let me now move to issue 1 decoded on behalf of the appellant which is akin to issue 2 couched on behalf of the respondents. The issue relates to proof of custom of Ijebu as to inheritance of a female child and customary tenancy.
Learned counsel for the appellant referred to Section 14(3) of the Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990. He felt that the plaintiff, by his own evidence, proved the custom. He cited Mojekwu v. Ejikeme (2000) 5 NWLR (Pt. 657) 402 at 433; Yaktor v. Gov. Plateau State (1997) 4 NWLR (Pt. 498) 229; Odogwu v. Odogwu (1990) 4 NWLR (Pt. 143) 224.
Learned counsel felt that customary tenancy was established through in-law relationship. He felt that there was denial of the plaintiffs title and such could incur forfeiture. He cited Ogun v. Akinyelu (1999) 10 NWLR (Pt. 624) 671 at 694-695. He opined that the plaintiffs evidence in respect of Ijebu custom of inheritance and customary tenancy was erroneously rejected and discountenanced. He urged that the issue be resolved in favour of the appellant.
Learned counsel for the respondents, on his own part, maintained that from the discordant tunes in the evidence proffered by the appellant and his witnesses, the founder of the land in dispute was not ascertained. He felt that with the finding, it became even unnecessary for the court to decide whether Seyin inherited the land under Ijebu customary law of inheritance.
This is because the purport of the trial court’s finding is that Osielu did not own the land and since that was so, there was nothing for Seyin to inherit.
I must express it here that there is force in the above submission of the learned counsel for the respondents. I have earlier on in this judgment found that no court will grant the plaintiffs claims based on his contradictory and conflicting evidence and on that score alone, the learned trial judge was right in dismissing his claim. Since that is so, it may not be necessary to determine whether or not Seyin inherited the land from Osielu as a child of a female under Ijebu customary law of inheritance. Since the appellant has not proved that Osielu owned the land, there was nothing for Seyin to inherit. It is nemo dat quad non habet.
In the alternative, learned counsel for the respondents submitted that the appellant failed to prove the Ijebu customary law of inheritance which entitles Seyin to inherit the land of Osielu, if he in fact had one, absolutely.
He observed that there was no pleading or evidence of Seyin’s brother or of Seyin’s children and whether he had a female child who also ought to inherit the land absolutely according to the appellant’s version of evidence. He felt that the lacuna showed clearly that the custom put forward by the appellant is most improbable and untrue.
Apart from the above, learned counsel referred to section 14(1) of the Evidence Act. He submitted that the appellant should call evidence to support his stance in his bid to prove Ijebu custom in respect of inheritance of the landed property absolutely by a female child of the parents. He cited Q., v. Ozogula (1962) WNLR 136; Bello Otaru v. Sumonu Otam (1986) 3 NWLR (Pt. 26) 14; Fadiora & anr v. Tijani Abonde & ors (1992) 6 NWLR (Pt. 246) 221 at 223.
Learned counsel finally, on the point, submitted that the learned trial judge was right to have rejected the ipse dixit of the appellant as proof of native law and custom in respect of a female child owning absolutely her father’s landed property.
There is no gainsaying the point that native law and custom is a matter of evidence to be decided by facts presented before the court in each particular case unless it is of such notoriety and has been so frequently followed by the court that judicial notice would be taken of it without evidence required in proof thereof. See Abiodun v. Erinmilokun (1961) 1 SCNLR 337; Larinde & Afiko 6 WACA 108; Olagbemi v. Ajagungbade II (1990) 3 NWLR (Pt. 136) 37.
Section 14(3) of the Evidence Act provides as follows:
“Where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in particular area regard the alleged custom as binding upon them ” (Underlined for emphasis)
In the case of the Queen Ex-parte Chief Ekpenga v. Chief Ozogula II (1962) 1 All NLR 265 at 268; (1962) 1 SCNLR 423, Ademola CJF pronounced thus:
“It is of the greatest importance that Native Law and Custom be strictly proved. It is correct that a
custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness.”
I need to further state it that Akanbi, J.C.A., as he then was, in Fadiora v. Abonde (supra) at page 231 felt that the ipse dixit of the person who alleges the custom is not sufficient. So also Maidama, J.C.A. in Ofaru v. Ofaru (supra) at page 20 maintained that the uncorroborated evidence of the person who asserts the custom is not sufficient.
I strongly feel that common sense supports the above position of the law as expatiated in the above authorities. The appellant should have called an elderly man who is versed in the alleged Ijebu custom on inheritance by a female child. This is because his own ipse dixit which is not independent may be coloured.
In short, the appellant failed to prove Ijebu customary law which entitled Seyin to own the landed property of Osielu absolutely. The learned trial judge was right in rejecting the uncorroborated ipse dixit of the appellant in proof of the alleged customary law. Again, it goes without saying, that Seyin had nothing to pass to the respondents’ forebear via an alleged in-law relationship. And as such, customary tenancy was not substantiated and proved. Again, it is nemo dat quod non habet.
I accordingly resolve issue 1 against the appellant and in favour of the respondents without any shred of hesitation.
On issue 3 which relates to the defence of acquiescence, learned counsel for the appellant submitted that it is not available to the respondents.
He cited Ige v. Farinde (2001) 10 NWLR (Pt. 721) 468 at 488 and Ekpe v. Oke (2001) 10 NWLR (Pt. 721) 341 at 355.
On his part, learned counsel for the respondents submitted that the defence of acquiescence was available to his clients from the facts of the case. He observed that there is evidence that DW2’s father built his first house on the land in 1914. In fact, PW2 gave evidence that DW2, his father and grand father farmed and lived on the land and that there are houses that are about 30-40 years thereon.
Learned counsel submitted that assuming without conceding that the appellant had proved his title to the land in dispute, the 1st respondent’s ancestors had been performing acts inconsistent with the alleged grant since 1829 without any protest from the appellant’s ancestors. He felt that even if the appellant did not know of the adverse claim until 1995, his ancestors should know. He cited Ajibona v. Kolawole Vol. 45 (No year) LRCN 2514, 2517.
There is no doubt that the length of delay in challenging adverse claim by the respondent; if indeed there was one, was inordinate. The appellant’s forebears knew of the claim since 1829. But nothing was done until 1995.
See Ige v. Fagboun (supra) cited by appellant’s counsel. As well, see Ekpe v. Oke (supra). The conduct of the appellant and his ancestors amounts to larches and acquiescence. I strongly feel that the defence of acquiescence avails the respondents in the peculiar circumstance of the case.
I resolve the issue against the appellant and in favour of the respondents.
The learned trial judge was right in his assessment of evidence. When the evidence of the parties is placed on an imaginary scale, the respondents should have an upper hand. See Mogaji v. Odofin (1978) 4 SC 91 at page 93; Bello v. Eweka (1981) 1 SC 101. See S. 135 of the Evidence Act.
I agree with the learned trial judge’s observation at page 136 of the record of appeal that the power to make declaration should be exercised sparingly with great care, extreme caution and sense of responsibility with full realization that judicial pronouncement ought not to be made unless there are circumstances that warrant it. There are no such circumstances herein. See Onotaire & ors v. Onokpasa & ors (1984) 15 NSCC 791.
Order should be made with due discretion which has to be exercised not only judicially, but judiciously as well. The learned trial judge exercised his discretion properly. See Eronini v. Iheuko (1989) 2 NSCC (Pt.1) 503 at p. 513; (1989) 3 SC (Pt.1) 30.
In conclusion, I find no merit in this appeal. It is hereby dismissed as I affirm the judgment of the learned trial judge handed out on 27th November, 2002. The appellant shall pay N5,000 costs to the respondents.
Other Citations: (2007)LCN/2390(CA)
