Alhaji Karimu Ibikunle V. Alfa Liasu Lawani & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
OKORO, J.C.A.
The plaintiff, herein referred to as appellant, claimed against the defendant now respondent in paragraphs 18 (a), (b) and (c) of his amended statement of claim as follows:-
“18 (a) A declaration of title to the farmland lying, situate and being at Oba Ile which is covered by survey plan No. OS/0674/95/039
(b) An order of perpetual injunction restraining the defendant, their (sic) his privies, agents and servants from trespassing on the said land.
(c) The sum of N75,000 (Seventy-Five Thousand Naira) being special and general damages for acts of trespass committed on the plaintiff’s farmland by the defendant”.
The facts of this case indicate that there is a parcel of land situate at Oba Ile. Both parties are laying claim to it. The plaintiff is claiming the whole lot while the defendant maintains he owns half of the whole land.
The plaintiff surveyed the whole land which survey plan was received in evidence as exhibit P1. The defendant surveyed his own portion after the intervention of the erstwhile Oloba Olagunju. The said survey plan was admitted as exhibit D1 at the instance of the plaintiff.
After the death of Oloba Olagunju and on the ascension of the throne of Oloba Olayinka who was DW1 in this case, the plaintiff re-entered the land claiming the whole lot but the defendant resisted the plaintiffs claims and reported to the incumbent Oloba. The Oloba, (DW1) sent his chiefs and the parties with their respective families to the land. The report and action coincides with that of his predecessor-in-office. He maintained the same ground.
The plaintiff was dissatisfied hence the instant case. The plaintiff insisted that his father granted temporary licence to one Awakan, a relative of the defendant to plant only gbodogi leaves on the land. The said Awakan died childless and the land reverted to his (plaintiffs) father. He therefore inherited the land from his father.
The defendants’ case is anchored on the fact that his ancestor was the original settler on the whole land. The said ancestor, Oyafunke granted a portion of the land to Oloba Fatoye his very close friend and associate after Oloba’s land had been wrestled away from him by Ikiron Community on one side and Ekean (Now Oba Oke) Community on the second side. That the land in dispute is not part of the land given to Oba Fatoye who was the grandfather of the plaintiff.
The learned trial Judge, after hearing evidence on both sides, dismissed the claim of the plaintiff in totality. In doing so, he held on page 49-50 of the record as follows:
“In the instant case, the plaintiff appears to depend on traditional evidence. But has he succeeded? I doubt it. By paragraph 3 of his pleadings which I have copiously stated above, the plaintiff claimed that his great grandfather tilled and farmed on the land. Two crucial questions arise for consideration.
He has failed to plead the names of his great grandfather, his grandfather and even his father through whom he claimed to get unto the land. Also, he has woefully failed top lead how his said great grandfather got to the land. The intentional or otherwise omission of these two preferential materials and relevant issues has done a devastating blow to his claim. His case is like a building erected on nothing which will inevitably collapse like a pack of cards”.
Being dissatisfied with the dismissal of his claim, the plaintiff now appellant, has appealed to this court.
From the amended notice of appeal dated and filed on 17th April 2003, the appellant raised two grounds of appeal and I accordingly set them out here without the particulars as follows:-
Ground 1: The learned trial Judge erred in law when he held that the plaintiff did not prove his root of title to the land in dispute simply because he did not plead the names of his great grandfather and how he got to the land originally.
Ground 2: The learned trial Judge erred in law when he held that the written address submitted by the plaintiffs counsel was rejected.
In the appellants brief, the learned counsel for the appellant formulated three issues for determination in spite of several admonitions by this court and the Supreme Court that issues formulated for determination should not be more than the number of grounds of appeal. I shall return to this matter later in this judgment. The issues are:-
- Whether the learned trial Judge was correct in holding that the appellant had not proved his root of title to the land in dispute simply because the appellant did not plead the name of his great grandfather and how he got to the land originally
- Whether the learned trial Judge was correct in holding that the appellant had no land in the area where the respondent admitted in evidence that he shares boundary with the appellant.
- Whether the learned trial Judge was right in rejecting the plaintiff counsel’s written address as an addition to the oral address earlier delivered to the court.
The learned counsel for the respondent however distilled two issues for determination as follows:
- Whether having regards to the pleadings and evidence in this case, the plaintiff discharged the burden of proof required of him so as to entitle him to judgment or to swing or tilt the scale of justice in the plaintiff’s favour as to sway the learned trial Judge to find in the plaintiff’s favour.
- Whether the learned trial Judge was right in refusing to take the plaintiffs written version of the final address after counsel to both parties had addressed the court viva voce on 16/4/2002 Before considering these issues, starting from the appellant’s brief, let me join my voice in condemning the practice by some counsel in formulating more issues than the grounds of appeal. The practice has always been to have less number of issues than the grounds of appeal as the purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed in the interest of accuracy, clarity and brevity. See Ogoyi v. Umagba & Anor. (1995) 9 NWLR (Pt.419) Page 283 at 297; Ugo v. Obiekwe & Anor. (1989) 1 NWLR (Pt. 99) 566.
Learned counsel for the appellant has stated on page 3 paragraph 4.02 that issues Nos. 1 & 2 deal with ground 1 of the grounds of appeal, thus formulating two issues from one ground of appeal. In my view which accords with the position of the Supreme Court, this practice is most undesirable and cannot be tolerated any longer. In Anie & Ors. V Chief Uzorka & ors (1993) 8 NWLR (Pt.309) 1, the Supreme Court observed:
“…it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed, indeed it is now a very well established principle of law that except in special cases where the ground of appeal dictate, it is undesirable to formulate an issue in respect of each ground of appeal”.
See also Attorney General of Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646. Let me not over labour this matter as I hope that counsel will take this admonition very seriously as this court will no longer tolerate a further infraction of this time honoured practice of making less issues than the grounds of appeal as was further amplified by the Supreme Court in Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 as follows:-
“the court has counseled counsel formulating issues on several occasions to ensure always that the formulation of issues for determination is not merely consistent with and within the scope and confines of the grounds of appeal relied upon but also that they should not be prolix and proliferate as to be more in number than the grounds of appeal on which they are based. This is because whereas an issue to be determined can take into consideration a number of grounds of appeal, it is not desirable to split a ground of appeal into a number of issues”.
From the issues filed by both the appellant and the respondent, it seems to me and correctly too, that there are two issues for the determination of this appeal. The appellant’s issue Nos. 1 & 2 are completely swallowed up in issue No.1 of the respondent’s brief. And issue No.3 of the appellant’s brief is the same with issue No.2 of the respondents brief. I shall determine this appeal based on the two issues since issues 1 & 2 of appellant’s brief are just one issue but are split for some inexplicable reasons.
Arguing the first issue, the learned counsel for the appellant submitted that where what is pleaded vaguely and broadly is based on traditional history and partly act of possession, then acts of possession can be resorted to if evidence of tradition is inconclusive. He cited Odofin v. Ayoola (1984) 11 SC 72. That since the plaintiff established in evidence that he inherited the land in dispute from his grandfather, who gave part of the land to the defendant, the lower court ought to hold that the plaintiff has successfully established two of the five ways of proving ownership of land and these are:-
(a) Traditional evidence and
(b) Act of long possession
He referred to these cases.
- Idundun v. Okumagba (1976) 9-10 SC 227
- Atanda v. Ajani (1989) 3 NWLR pt. 111 p. 511
- Ogunnaike v. Ojayemi (1987) 1 NWLR (Pt.53) 760; (1987) 3 SC. 215
Furthermore, the learned counsel for the appellant submitted that since the appellant called evidence of boundary men against the defendant who did not call any, the learned trial Judge ought to have preferred the traditional history of the plaintiff. In this regard, he cited the case of Chief Oyelakin Balogun v. Oladosu Akanji & Anor. (1988) 1 NWLR (Pt.70) 301; (1988) 2 SC (Pt.1) 199 at 213 and 221.
Also on this issue, the appellants counsel opined that the learned trial Judge was wrong to have declared that the land belongs to the defendant when there was no counter-claim before him wherein he referred to the following cases:-
- Olosunde v. Udegbe (1963) 1 SCNLR p. 184
- Nwokafor v. Udegbe (1963) 1 SCNLR p.184
Finally, learned counsel submitted that it is against the tradition of Oba-Ile for a Chief to grant land to an Oba as was the evidence of DW1. He urged the court to compare this with the evidence of DW2 on the issue and to hold that the evidence of those two witnesses were contradictory. He urged the court to allow this appeal.
In the respondent’s brief of argument, the learned counsel for the respondent submitted on issue one, that apart from the fact that the appellant’s pleadings were vague, broad and inconclusive as submitted by him in his opening argument in his brief of argument, he failed to prove before the lower court his root of title in that;
(1) he did not plead the names and the histories of his ancestors
(2) he did not plead how his ancestors (great grandfather/father) acquired title or got to the land he claims or by what mode the land was acquired as well as the particulars of the intervening owners through whom he claimed title.
This failure, he submits contravenes order 25 rules 4(2) of the Oyo State High Court (Civil Procedure) Rules 1988 applicable in Osun State. He cites the case of Akinloye & anor. v. Eyilola & ors. (1968) NMLR 92 at 95. S.A Lawal & ors v. Alhaji Saliu Olufawobi & ors (1996) 10 NWLR (pt. 477) 177 at 187-189. Ezekiel Nneji & ors v. Chief Nwankwo Chukwuma (1996) 10 NWLR (pt. 478) 265 at 276.
Learned counsel urged the court to hold that the learned trial Judge rightly dismissed the plaintiffs claim as lacking in substance. Thus the plaintiff failed to prove traditional evidence and on long possession, the respondent relied on the case of Nelson Nwosu Onwugbufor & 2 Ors. v. Herbert Okoye & 3 Ors. (1996) 1 NWLR (Pt. 424) 258 at 282 to submit that the appellant failed to prove acts of long possession. That on the other hand the respondent pleaded and proved his root of title, numerous acts of long possession and the fact of customary arbitration which was in his favour. On the issue that the trial Judge awarded title to the respondent when he did not counterclaim, he submitted that nowhere in the record did the trial Judge declare title in favour of the respondents. He urged this court to resolve issues 1 & 2 as formulated by the appellant against him.
It is now well settled that there are five ways in which ownership of land may be proved. The five ways were clearly stated in the case of D.O. Idundun & 6 Ors. v. Daniel Okumagba (1976) 9-10 Sc, 227 at 246-250 as follows:-
(i) By traditional evidence;
(ii) By production of documents of title;
(iii) Acts of the person claiming the land over a sufficient length of time numerous and positive enough as to warrant the inference that the person is the true owner;
(iv) Acts of long possession;
(v) 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 plaintiff, now appellant anchored his case at the lower court on the first method of proving ownership of the land in dispute i.e. traditional evidence. It is pertinent to also note that the defendant, now respondent also precipitated his evidence on traditional history in order to show that the land belongs to him. The duty of the learned trial Judge was to weigh on that imaginary scale and determine which evidence of the two is weightier.
As the appellant based his claim on traditional evidence the learned trial Judge observed on page 49 of the record that the appellant failed to plead the names of his great grandfather, his grandfather and even his father through whom he claimed to get unto the land. Also that he woefully failed to plead how his said great grandfather got to the land. The learned Judge concluded that the plaintiffs case is like a building erected on nothing which will inevitably collapse.
The learned counsel for the appellant appears to agree with the findings and conclusion of the learned trial Judge when he states on page 3 paragraph 5.02 of his brief of argument as follows:
“We submit with respect that where what is pleaded vaguely or broadly is based on traditional history and partly acts of possession, then acts of possession can be resorted to if evidence of tradition is inconclusive” (underlining is mine).
It should be noted that in a claim for declaration of title the plaintiff has the onus to satisfy the court that he is entitled to the declaration sought.
The weakness of the defendant’s case cannot be relied upon by the plaintiff.
See Elufisoye v. Alabetutu (1968) NMLR page 298.
It is also well settled that parties are bound by their pleadings. Therefore all issues to be tried must be settled in the pleadings. See Morinatu Oduka v. Kasumu & Anor. (1968) NMLR page 28. Where facts are “vaguely”, “broadly”, and “inconclusively”, pleaded, then the plaintiff’s case is marred in his hands like the porter’s clay. Order 25 rule 4(2) of the Oyo State High Court (Civil Procedure) Rules 1988 as applicable in Osun State provides that:-
“The facts shall be alleged positively, precisely and distinctively and as briefly as is consistent with a clear statement.”
Definitely, not vaguely, broadly and inconclusively as the appellant’s counsel describes his statement of claim. The learned trial Judge had noted that the appellant did not plead the names and histories of his several ancestors and that he did not plead how his ancestor (great grandfather) acquired title or got to the land he claims or by what mode the land was acquired as well as the intervening owners through whom he claimed title. I think this was a very serious omission by the appellant in his pleadings. In a claim of declaration of title to land based on inheritance from ancestors, the claimants must plead the names or the histories of the several progenitors. See Akinloye & Anor. v. Eyiyola & Ors. (1968) NMLR page 92 at 95. The Supreme Court has also stated in Lawal v. Olufowobi (1996) 10 NWLR part 477 page 177 at 187 that:
“mere pleading as the plaintiff had done in this case, that they (Ibidepe Community) were founded in 1425 AD and therefore had since owned and possessed the land in dispute, is not a sufficient pleading of tradition. In this regard the plaintiffs were bound to have pleaded who founded the land, how it was founded and particulars of the intervening owners through whom they claimed”.
In the instant case, the only facts pleaded which facts seem to show the appellant’s root of title is in paragraph 3 of his amended statement of claim (see page 3 of the record). It sates:-
“3. The plaintiff avers that the land in dispute belongs to his great grandfather who farmed on it till he died. After his death his grandfather farmed in it and later passed the farmland to the plaintiff’s father”.
Any wonder therefore why the appellant’s counsel described the statement of claim he prepared as vague, broad and inconclusive? Learned counsel for the appellant had urged this court to hold that the learned trial Judge ought to have preferred the evidence of the boundary men who testified for the appellant when the respondent did not call any boundary men. My view is that issue of boundary of the land or its identity was never in doubt and as such the learned trial Judge was right in ignoring such evidence especially as these boundary men were never pleaded. I am satisfied that the learned trial Judge did his best in coming to the conclusion which he did as he preferred the evidence of the respondent in the circumstance. He had brought it out in his judgment on pages 50-51 that the respondent was able to show in his statement of defence and evidence before the court his root of title through the original settlers, Oyafunke as can be seen in paragraphs 3-23, 30 and 31 of statement of defence. He was also able to show the intervening successors i.e. the direct children of the original settler, the numerous and positive acts of possession and the fact of customary arbitration by Oba Michael Adebisi Olayikan Adeoyo IV, the Oloba and his chiefs which was in favour of the respondent. My view is that the appellant failed to discharge the burden placed on him in proving his root of title. The learned trial Judge was, in my opinion, right in holding that the appellant did not prove his claim before the court. The appellant’s counsel had argued that the Judge was wrong in declaring title in favour of the respondent. As pointed out by the respondent’s counsel, and I agree with him, there is nowhere in the printed words of the records where the learned trial Judge declared title in favour of the respondent. So that argument goes to no issue.
On the whole, it is correct to say that the lower court was right when it held that the plaintiff failed to plead and prove not only the names of his ancestors but also how his ancestors came upon this land. The plaintiff/appellant ought to have pleaded and proved particulars of his progenitors, intervening descendants or owners through whom he descended and through whom he claimed title to the land in dispute. The plaintiff/appellant’s case therefore properly failed. Consequently, I resolve issue No.1 against the plaintiff/appellant and hold that the lower court properly directed itself as to where the onus of proof lay in this case.
The next and last issue has to do with the refusal of the learned trial Judge to allow the learned counsel for the appellant to file written address after a verbal one had been given. Learned counsel for the appellant submitted that addresses are designed to assist the court and by dismissing the application for a written address, the learned trial Judge had deprived him of his right to address the court on behalf of his client at the close of the case for both sides. That the refusal of the written address has led to a miscarriage of justice. He cited Niger Construction Ltd. v. Okugbemi (1987) 4 NWLR (Pt.67) 787, (1987) 2 SC page 108; Forcados Ovo Obodo v. Stafford Olomu & Anor. (1987) 3 NWLR (Pt.59) 111, (1987) 6 SC 154.
Apart from urging that the two authorities cited by the appellant’s counsel are inapplicable, the learned counsel for the respondent submitted that apart from the fact that the appellants counsel addressed the court on 16/4/96, he has not shown that the refusal of his application to file a written version of the address he had earlier delivered viva voce in court led to or occasioned a miscarriage of justice in this case. He urged the court to resolve this issue against the appellant.
In this case both counsel addressed the trial court on 15/4/96 viva-voce (See pages 23-26 of the record). Thereafter, the appellant’s counsel by motion on notice sought to file a written address which he had made viva-voce. The learned trial Judge refused the application describing it as “frivolous and an abuse of court process”. (See page 34A of the record). I think nothing could be more frivolous in the circumstances of this case and which action the court below rightly dismissed as an abuse of court process. Addresses by counsel are designed to assist the court. It must however be noted that no amount of brilliance of counsel in his address can make up for the lack of evidence to prove and establish or else disprove and demolish any point in issue. See Niger Construction Ltd. v. Chief A.D Okugbemi (supra).
The way I see this matter is that learned counsel was just playing to the gallery or how else can one describe such action of learned counsel.
After an address by both counsel and the court reserved the matter for judgment, counsel then filed a motion seeking to reduce his verbal address which were recorded by the court into writing. For what purpose? I have looked at the affidavit in support of the application to file a written address on page 28 of the record. Paragraph 4 of the said affidavit states:-
“4. That Chief Goke Ajiboye the counsel in this matter told me and I verily believe him that he intends to file copies of his address delivered on the 16th April, 1996, attached as Exhibit A”.
There was no complaint that the address made viva-voce was not sufficient. He just wanted to file the address for filing sake. The learned counsel has not shown how the refusal by the trial Judge to accept two addresses from him has affected his case. The two cases cited by him in this case are inapplicable at all as the facts are poles apart. The appellant was given fair hearing as both his counsel and that of the respondent addressed the court on the same date. I am also satisfied that the learned trial Judge rightly refused to allow the second address by the learned counsel for the appellant. I agree with the court below. Accordingly this issue is also resolved against the appellant.
In the net result, I find no merit whatsoever in this appeal which is hereby dismissed. I affirm the judgment of the court below and award cost of this appeal assessed at N4,000.00 in favour of the respondents.
Other Citations: (2006)LCN/2126(CA)
