Alhaji S.A. Kazeem & Anor V Madam Wemimo Mosaku & 2 Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, JSC

The plaintiffs are the appellants. The defendants are the respondents. The appellants as plaintiffs claimed N500.00 special and general damages for trespass on land and perpetual injunction. Pleadings were filed and duly exchanged. The matter was tried by the learned trial Judge. He not see his way clear in granting the reliefs of the appellant. He did dismissed the claim in its entirety. He granted the claim of the 1st respondent. He awarded damages of N1,200.00 for trespass. He also granted perpetual injunction against the appellants. Aggrieved, the appellants went to the Court of Appeal. The appeal was thrown out. They have come to this court. Briefs were filed and duly exchanged. The appellants have formulated two issues for determination:

“(1) Whether having regard to the pleadings and the evidence the Court of Appeal was right to decide as the High Court did that the land was validly sold to the 1st Defendant by the Agbaka Family.

(2) Whether, the lower Courts were right to uphold the sale to the 1st Defendant and do so in particular by the application of the Rule in Akinola v. Oluwo (1962) 1 All NLR 224/227.”

The respondents have formulated one issue for determination. “Whether on the basis of the evidence given before and accepted by the trial Judge, the lower court was right in holding that there was a valid sale of the piece of land in issue to the 1st respondent.”

The fulcrum of the submission of learned counsel for the appellants is that the learned trial Judge did not consider Exhibit C (the written agreement), the evidence of 1st and 2nd plaintiffs, PW2 and fifteen exhibits. He argued that the learned trial Judge was wrong in using only partial oral evidence, which resulted in shutting out the above vital evidence. He argued that the learned trial Judge directed his mind to the headship of the family, which was not an issue before the court. He cited NITEL v. Jattau (1996) 1 NWLR (Pt. 425) 392. Counsel submitted that there was evidence of partition of the land. He cited Cole v. Folami (1956) 1 FSC 66/68; Iwuno v. Diali (1990) 5 NWLR (Pt. 149) 126 at 135; Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39 and Onuoha v. State (1989) 2 NWLR (Pt. 101) 23. On possession, learned counsel submitted that the decision reached by the learned trial Judge and confirmed by the Court of Appeal that the plaintiffs committed trespass on the land of the defendants is not correct and should therefore be set aside. He argued that as at 1984 the land was that of the family of the plaintiff who are presumed to be in possession PAGE| 4 of it till the contrary is proved. He cited Ologunleko v. Ikueomelo (1993) 2 NWLR (Pt. 273) 16. He contended that the 24 years possession of the 1st defendant cannot avail him because it is shown as 24 years when he performed no overt act of ownership to the plaintiff’s knowledge. He cited Isiba v. Hanson (1993) NSCC 3. Counsel dealt with in paragraphs 4.7.01 to 4.7.03 of the brief what he regarded as adverse comments of the learned trial Judge. On the Rule in Akinola v. Oluwo (1962) 1 All NLR 224 at 227, learned counsel submitted that the rule favours the appellants. He cited Olaloye v. Balogun (1990) 5 NWLR (Pt. 148) 24; Akintola v. Solana (1986) 2 NWLR (Pt. 24) 598; Ojo v. Phillips (1993) 5 NWLR (Pt. 296) 751; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt. 7) 393; Ajao v. Alao (1986) 5 NWLR (Pt. 45) 805 and Omoni v. Tom (1991) 6 NWLR (Pt. 195) 93.

He urged the court to allow the appeal. Dr. G. Elias learned Senior Advocate of Nigeria for the respondents, submitted that the evidence before the court was neither inconsistent with nor contradictory of Exhibit C. On the contrary, the evidence elicited in the course of cross-examination of PW2 complements Exhibit C; evidence learned Senior Advocate submitted was not contradicted. He cited Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641. The essence of cross-examination, learned Senior Advocate argued, is to test the veracity of the evidence of the witness and any answer in the course of cross-examination, albeit damning to the case of the party who the witness represents, but supportive of the case of the opposing party, is relevant. He cited Akinola Oluwo (1962) 1 All NLR 225; Ojiako v. The State (1991) 2 NWLR (Pt. 175) 578. On partition, learned Senior Advocate submitted that mere allegation of the act of partition is not enough and so the Court of Appeal was right in holding that there was no evidence of partition. Even if there was partition, the partition will be inconsequential as it was alleged to have occurred in 1981, nearly 20 years after the land had been sold to the 1st respondent, learned Senior. Advocate contended.

Learned Senior Advocate maintained that the trial court properly evaluated the evidence and the Court of Appeal was therefore in a good position to evaluate the evidence before the trial court. He referred to the concurrent findings of the two courts below and urged the court to dismiss the appeal. The appellants have relied heavily on Exhibit C. They regard it as the alpha and omega of this appeal. To them, judgment ought to be given in their favour if Exhibit C is adequately considered and the content given desired probative value. The appellants accused the Court of Appeal of failing to examine the exhibit. And so, I must examine the almighty Exhibit C. It is the deed of conveyance. It begins with the traditional recitals, the history behind the deed. They are two. The first refers to the Supreme Court Suit No. 17/1953. The second is the history behind the sale, tracing it from the vendors and relating it as usual, to the purchaser. THE INDENTURE commenced from where the recitals stopped. I think I should not paraphrase the INDEN-TURE. It is the crux of the deed. Let me therefore read it in full:

“NOW THIS INDENTURE WITNESSETH that to effectuate the said sale and in consideration of the said sum of £660 (Six hundred and sixty Pounds) sterling full purchase money paid by the “Purchaser to the said “Vendors” (receipt whereof is hereby acknowledged and from the same doth hereby release the “Purchaser”) they the said “Vendors” as Beneficial Owners and as such “Personal Representatives of the “Agbaka’s Family” hereby Grant and Convey unto the “Purchaser” all that Piece or parcel of land situate, lying and being at Ejigbo village in Ikeja District, on the Western Region of Nigeria which with its dimensions and abuttals are described and delineated on the Map or Plan – shown below these presents and thereon Edged Red to Have and To Hold the said hereditaments Unto and to the Use of the “Purchaser”, her Heirs and Assigns in fee simple absolute.”

Learned counsel for the appellants submitted that the appellants have established that those who assigned Exhibit C are not the Agbaka family of Otegbola and Eshubi branches. Learned Senior Advocate for the respondents submitted that at least three of the representatives in Suit No. 17 of 1953 executed Exhibit C and conveyed title of the piece of land to the 1st respondent. The position of the learned Senior Advocate is vindicated by the learned trial Judge, who said at page 97 of the Record: “Now both in their pleadings and evidence the plaintiff’s case is that those who sold their family land to the 1st defendant were not the family’s representatives hence they had no right to sell. Those vendors were Mudashiru Sule, Bakare Abuna, Alaba Agberu and Salami Abuna. It appears ex facie Suit No 17 of 1953 that three of these vendors were the representatives of the Agbaka family who sued for and on behalf of the family. By the 2nd plaintiffs witness showing these members of the family as the family’s representatives would have the right to look after and sell the family’s land. The defendants are entitled to the benefit of this evidence and adopt it as part of their case” Perhaps the position will become clearer by examining Exhibit C closely, and this I will do by quoting the commencement:

“BETWEEN MUDASIRU SULE, BAKARE ABUNA ALABA AGBERU and SEMI SALAMI ABUNA all of District of the Western Region of Nigeria, “Personal Representatives of the “AGBAKA Family” of Ejigbo village and abroad (hereinafter called the Vendors which expression shall where the context so admits include successors in office) of”

It is clear to me that the representatives of the family in Suit No. 17 of 1953 and those in Exhibit C have three names in common. They are Mudasiru Sule, Bakare Abuna and Alaba Agberu. Is this a mere coincidence? I think not. That apart, contrary to the argument of learned counsel for the appellants that those who signed Exhibit C are not members of the Agbaka family, this is clearly stated in the above commence-ment of the exhibit in the following terms: “Personal Representatives of the AGBAKA FAMILY”.

The appellants averred in paragraph 8(2) of their Statement of Claim that Agbaka family had at no time any personal representatives. This averment is in conflict with Exhibit C which clearly states that Mudasiru Sule, Bakare Abuna, Alaba Agberu and Semi Salami Abuna are “personal representatives of AGBAKA FAMILY”. Where lies the case the appellants are really making.

And these are the appellants who tried to fault the Court of Appeal for not making use of Exhibit C. Is Exhibit C really in their favour? Counsel correctly submitted in paragraph 4.3.14 of the appellants’ brief that Exhibit C “is final and conclusive as to the vendors who sold to the defendants” and “in that connection any recourse to any oral evidence is invalid.”

This is solid law and counsel has very well expressed it. I am not here relying on any oral evidence. I rely on the Statement of Claim and Exhibit C and they are of no assistance to the appellants. If anything, they are against them. Considering the fact that both the Statement of Claim and Exhibit C found their way to the court through the appellants they are really in trouble in this appeal. I have not finished with the statement of claim. Let me read paragraph 6 of the Statement of Claim “Between (1959) and (1982) the members of the Agbaka family referred to in paragraph (5) above were the only competent members of the said family that could convey, grant or transfer the family land or any portion thereof to any person.”

In paragraph 7, the statement of claim referred to Exhibit C and averred that the 1st respondent purported to have bought the land in dispute from Mudasiru Sule, Bakare Abuna, Alaba Agberu and Semi Salami Abuna. I ask, why the word “purported” in paragraph 7. Purport in the context means to claim to be or have an appearance of being. How can the correct factual averment in paragraph 6 amount to a purported action in paragraph 7 which avers to Exhibit C As Exhibit C was made in 1960, it qualifies within the averment in paragraph 6 to the effect that it was made between 1959 and 1982. The point I am struggling to make is that the appellants are bound by the averment in paragraph 6 of their Statement of Claim and they cannot move out of it however they try in paragraph 7 because paragraph 7 is consistent with Exhibit C which the appellants have asked this court to use. Learned counsel for the appellants submitted that “the title to Agbaka’s land devolved on the two surviving children here Otegbola and Eshubi.” The law is loud and clear that the burden of proof of title to land is on the plaintiff and he must discharge that burden to obtain judgment. See GB Ollivant Ltd, v. Korsah (1941) 7 WACA 188; Odesanya v. Ewedemi (1962) 1 All NLR 320; Adenle v. Oyegbade (1967) NMLR 136; Oyeyiola v. Adeoti (1973) NNLR 1-0 and Akinola v. Oluwo (1962) WNLR 133. Counsel cannot just come out from the blues and make that submission. Submission of counsel must be based on facts that the land in dispute devolved on Otegbola and Eshubi. Counsel qua advocate is the owner of the law in the sense of expertise while the facts of the case are owned by the party in the sense of possession, knowledge and intimacy. While the party cannot dabble into the domain of the law which belongs to the counsel, counsel PAGE| 9 cannot dabble into the domain of the facts which belong to the party. Such is the clean and clear division of labour, though not in the strict use of the expression in the law of economics. As there are no facts upon which the submission of counsel can be based, it should be rejected, and I reject it. And that takes me to the issue of partition. PW2, Jimoh Falana, in his evidence-in-chief said at page 47 of the Record: “I remember that Esubi and Otegbola branches went to court in 1981. We later withdrew the case from court. We settled out of court amicably. We partitioned the Agbaka land, one part for Esubi and one part for Otegbola.” Dealing with the issue of partition, the learned trial Judge said at page 101 of the Record: “I find no evidence to support the allegation that the family land was in fact partitioned in 1982. Even if the family land was partitioned, the portion sold to and effectively vested in the 1st defendant was no part of the family land available for partition.”

The Court of Appeal said at page 212 of the Record on the issue of partition: “I do not think that the issue of partitioning of the family land in 1982 is of any real relevance in this case. When the land was partitioned there was no survey plan showing the land belonging to Elusi or Otegbola branch. Since the court below believed the evidence of the defence witness that when the survey plan of the area purchased by the 1st respondent was being made several members of the Agbaka family including some of the appellants gave a helping hand,. The necessary assumption or inference is that such land could” not have been included in the area partitioned – the area subject of a deed of sale Ex. C.” PAGE| 10 I entirely agree with the learned trial Judge. If the land was partitioned in 1982, how can that affect ‘Exhibit C which was executed in 1960? In the circumstance, the issue of a 1982 partition is a non sequitur in respect of Exhibit C, a 1960 deed. Another aspect of this appeal which is in favour of the respondents is the concurrent findings of fact of the High Court and the Court of Appeal. The law is trite that this court cannot tamper with concurrent findings of fact of the two courts unless such findings are perverse. I do not see any perversity in the findings of the two courts. On the contrary, I am of the view that the findings are borne out from the evidence before the trial court. I do not think I should go into this appeal further. The appeal has no merit. It therefore fails and it is dismissed, I affirm the decision of the Court of Appeal. I award N10,000.00 costs to respondents.

SC. 230/2001