Alhaji S. F. Balogun V. Z. R. Oshunkoya (1992)
LawGlobal-Hub Lead Judgment Report
OGUNDERE, J.C.A.
Before Ajibola J. at the Ijebu-Ode Judicial Division of Ogun State, the plaintiff, now appellant sought a declaration that he is the owner of, and the person entitled to a Certificate of Occupancy of a moiety of Oshunkoya family house and land situate at No.7 Ebumawe Street, Ibipe Quarter,Ago-Iwoye.
The plaintiff also sought possession of the said property and an injunction to restrain the defendant, his servants and agents from entering upon the land and from undertaking any building construction thereon.
Pleadings were filed and exchanged. In the statement of claim the plaintiff averred that the parties are brothers of the full blood; their father’s name was Oshunbanjo, and the defendant was the elder brother. Oshunbanjo himself had a brother of the full blood called Oshuntoye, both being descendants of Oshunkoya.
The genealogical tree of the parties is as follows:-
Oshunkoya
Oshunbanjo Oshuntoye
Z. A. Oshunkoya S. F. Balogun Juliana Chief S. A.
(Defendant) (Plaintiff) Oshuntoye Oshuntoye
(Head of the family)
When Ago-Iwoye was founded, their Grandfather Oshunkoya settled on a parcel of land at Ibipe quarters and built a mud-wall bungalow thereon.
The said land is a combination of the areas edged Blue and Red on the Survey plan Exh. “A”. On the demise of Oshunkoya, his land was partitioned between his two children Oshunbanjo and Oshuntoye. The parcel of land edged Blue was allotted to Oshuntoye, and that edged Red was allotted to Oshunbanjo. Oshunbanjo had two children Oshunkoya, the defendant, and Balogun the plaintiff who was in town and looked after his father very well. His father Oshunbanjo then persuaded his brother Oshuntoye to release the land edged blue in Exhibit A to the plaintiff. The plaintiff then built his residence on the said land as indicated in the survey plan Exhibit A.
Oshunbanjo later died and his mud house built on the area edged Red was partitioned between his two children parties to this action. The senior brother, the defendant, being poorer than his junior brother was given a substantial portion of their father’s house whilst the portion which had become dilapidated was given to the plaintiff. The plaintiff in 1981 was stopped by the defendant with violence from developing his own portion of his father’s house, which event gave rise to this action.
The case for the defendant was that contrary to the plaintiffs case, their grandfather Oshunkoya had land at Ibipe quarters, Ago-Iwoye and at Orule Ibipe near Ago-Iwoye. In his life time he gave the property at Ibipe quarters to Oshunbanjo and that of Orule Ibipe to Oshuntoye. The land in Exhibit A was therefore the property of their father Oshunbanjo. He admitted that the plaintiff built his house on Plot 1 of the area edged blue in Exhibit A with his, defendant’s consent in 1940, ten years after the death of their father. The two brothers in 1945 shared the land in Exhibit A between themselves without any outside interference. Their father’s ruined house with some walls standing and with a hanging roof now falling and numbered 7 Ebumawe Street went exclusively to the defendant as the senior brother. The vacant land behind the ruined house edged blue in Exhibit P minus the green portion went to the plaintiff. The defendant when he had money built his house on the plot 3 in his portion of land. The Health Authorities in August, 1975 served the defendant notice to abate the nuisance in respect of the hanging roof and the wall ruins on plot 4 within his own land. Another such notice was served on the defendant in August 1980. He thereupon pleaded that the plaintiff’s claim be dismissed.
Both parties led evidence in support of their pleadings. The learned trial Judge reviewed and evaluated their evidence, found that the plaintiff failed to prove his case and dismissed his claim. Dissatisfied with that judgment, the plaintiff appealed on two grounds, the Omnibus, and another criticising the order of the court that it should be a non-suit and not a dismissal of his action.
In this court, both parties filed and exchanged briefs of arguments. In the appellant’s brief the following two issues were raised:
(1) Whether having rejected the evidence of both the plaintiff and the defendant, the learned trial judge was right in dismissing the suit instead of entering an order of non-suit.
(2) Whether the learned trial Judge was right in dismissing the suit instead of striking it out after holding that all proper parties were not before the court.
Oluwole Aina Esq. learned counsel for the appellant both in the appellants’ brief and at the hearing submitted as put in a precis as follows. It is common ground that the land in dispute is the joint inheritance of the parties from their deceased father, which land was partitioned between the parties. The question is the validity of the said partition in view of the existence of other children of their father apart from the parties and other parcels of land not in dispute. Therefore as all interested children were not made parties, and as the appellant has shown that he had some claim to the land in question the action should have been non-suited or struck out. The learned trial judge erred when he dismissed the action. Oloriode v. Oyebi (1984) 5 S.C. 1; (1984) 1 SCNLR 390; Seismograph Service Nigeria Ltd. v. Eyuafe (1976) 9-10 S. C. 135, at 159.
The appellant could not be said to have failed in toto in his action and that is not consistent with an order of dismissal. An order of non-suit is more appropriate. Ejiofor v. Onyekwe & Ors (1972) 12 S.C. 171, at 185 where Coker J.S.C opined thus:
“An order of dismissal operates as estoppel per rem judicatam and, ipso facto, bars the losing party for all times from re-litigating the same subject-matter. A finding that such a party is entitled to some though not ascertained portions of the land in dispute is not consistent with an order of dismissal. If a plaintiff fails in toto to prove his case, an order of dismissal should normally follow but where the failure was only due to a technical hitch, the evidence of the merits showing the entitlement of the plaintiff to the land claimed or portions of it and the defendants not being entitled to the judgment of the court, the interest of justice demands that such a plaintiff should not be forever shut out from representing his case. See the observations of the West African Court of Appeal in Uzonwane Nwakuche v. Peter N. Azubuike & Ors. (1955) 15 W.A.C.A, 46. In similar circumstances this Court had directed an order of non-suit. See Craig v. Craig (1967) N.M.L.R.52; also Dada v. Ogunremi (1962) 1 All NLR 663; (1962) 2 SCNLR 417.
O. Aina Esq. learned counsel for the appellant then referred to the findings of the learned trial judge at P.64 line 23 – 31, and p.65 line 1-4 of the record as follows:-
“Partition of Oshunbanjo’s land between Oshunbanjo’s children namely the plaintiff and the defendant had been alleged by both parties. This court has been told that the children of Oshunbanjo were only two. The plaintiff supports this with genealogical tree. But when evidence was given, it came to light (under cross-examination) that Oshunbanjo had children, other than the plaintiff and the defendant, who had been given other parcels of land. In a partition, if some of the beneficiaries are left unprovided for, the court may hold that there had been no partition: Majekodunmi v. Tijani (1933) 11 N.L.R. 74 or where some parcels of land were not included: George v. Fajore (1939) 15 N.L.R 1. The plaintiff has failed to disclose these facts although he told the court that there were other children of Oshunbanjo. If there are other children of Oshunbanjo as claimed by the plaintiff, the defendant ought to know. If therefore the plaintiff suppressed facts in this regard, he is actively supported by the defendant. Oshunbanjo had been portrayed as having the land edged BLUE only. But the plaintiff gave evidence of other parcels of land belonging to Oshunbanjo which had been given to others. The plaintiff was not cross-examined on this point by the 2nd defendant. I do not share the view that in this case and on the facts before this court, the course of justice could be better served by entering a non-suit.”
It was also urged that in the alternative the action should have been struck out as all necessary parties, other children of their deceased father, were not joined on the authority of Oloriode v. Oyebi (1984) 5 S.C.1 ,at 16; (1984) 1 SCNLR 390.
S. O. Bakare Esq. learned counsel for the respondent both in the respondent’s brief of arguments and at the hearing of this appeal made the following submissions. The dispute before the court was partition of land between the two children of their deceased father. Therefore the proper parties were before the court. See Jadesinmi v. Okotie-Eboh: In re lessey (1989) 4 NWLR (Pt.113) 113, at 126, where Akpata JSC citing with approval the dictum of Oputa J.S.C in Green v. Green (1987) 3 NWLR (Pt.61) 480, at 492 said:-
“Plaintiff who conceives that he has a cause of action against a particular defendant is entitled to pursue his remedy against that defendant only and should not be compelled to proceed against other person whom he has no desire and no intention to sue.”
Afolayan v. Ogunnubi 4 WBRN 21, 24, 43 and that the plaintiff having failed to prove his case, the learned trial judge rightly ordered the dismissal of the action. Further as the defendant did not counter-claim, the defendant could not obtain any decree of the court in his favour. Kodilinye v. Odu (1935) 2 WACA 336, at 338. The evidence of the plaintiff that their father had other children who were given land elsewhere should be ignored because that was not pleaded. The plaintiff pleaded that their father had only two children, the parties in the case. The learned trial judge rightly rejected that evidence in his appraisal of evidence adduced by both parties at p. 60 of the Record. As the learned trial judge also reviewed the evidence of the defendant/respondent at pages 62 and 63 of the record, he could not be faulted in his conclusion that the plaintiff failed to prove his case and the consequential order of dismissal of the action. Moreover as there is no error in the appraisal and evaluation of the evidence at the trial by the lower court, this Court should not disturb the said judgment. Afolayan v. Ogunrinde & Ors. (1986) 3 NWLR (Pt.26) 29, at 30, 37; Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22, at 23-24 the moreso as the appellant as plaintiff failed to prove his exclusive entitlement to the area he claimed as shown in the survey plan Exhibit 1.
It was further submitted for the respondent that the lower court did not say that the plaintiff had no share in his father’s property therefore Ejiofor v. Onyekweu (1972) 12 SC 171, at 185 does not assist the appellant. The order of non- suit was therefore not appropriate as the plaintiff after due contest with the defendant on the merits of the case failed to prove his case. Olayioye v. Oso (1969) 1 All NLR 281, at 284.
In that case, the Supreme Court held that a long line of authorities had established the principle that where a plaintiff in an action for a declaration of title fails to prove his case the proper order is one of dismissal of the claim. Kodilinye v. Odu (1935) 2 WACA 336. The trial court in that case was therefore held to have erred in law when he non-suited the plaintiff who was at best a squatter who unsuccessfully sued the rightful owner for a declaration of title to the land in dispute.
The rule of law is that a trespasser can maintain an action in trespass against anyone except the true owner. That decision it was submitted supported the lower court which at p.65 line 12 to 17 held as follows:-
“I do not share the view that in this case and on the facts before the Court, the course of justice could be better served by entering a non-suit. I have reviewed the evidence of all the witnesses and I have come to the conclusion that the plaintiff has failed to prove his case and the action is accordingly dismissed.”
It was finally urged that the appeal should be dismissed as lacking in merit. I have given deep thought and consideration to the pleadings, and indeed the entire record of proceedings of the lower court, the grounds of appeal and issues raised by the appellant, and the briefs of the parties. I am of the view that the respondent in his brief of arguments correctly summoned up the issue in the appeal where it stated that on the state of evidence adduced by both the plaintiff now appellant and the defendant now respondent,was the learned trial Judge right in dismissing instead of non-suiting or striking out the plaintiff’s action.
First, the plaintiff pleaded a set of facts and at the trial gave evidence on facts not pleaded with regards to the alleged other children of their father who were allotted other parcels of land. The plan Exhibit I showed a straight line of demarcation of the parcel of land edged blue and the adjoining parcel of land edged red. The plaintiff did not amend his Statement of Claim to take care of a new case he put up at the trial. It is trite law that parties are bound by their pleadings and evidence led which is not pleaded as the plaintiff did at the trial goes to no issue and the trial court can ignore or strike out such evidence in his judgment. Ambrosini v. Tinko (1929) 9 NLR 8, 12. In Domingo Paul v. George (1959) 4 F.S.C. 198, at 201; (1959) SCNLR 510, it was held per Brett F.J that the lower court was wrong in considering a point which had not been raised on the pleadings and on which the plaintiff’s case had not been completely presented. Idika & Ors v. Erisi & Ors (1988) 5 SCNJ 208, at 219; (1982) 2 NWLR (Pt.78) 563 is another authority for the proposition that any decision based on issues not raised by the parties in either their pleadings or grounds of appeal will not be allowed to stand. In Olowosago v. Adebanjo (1988)4 NWLR (Pt.88) 275; (1988) 9 SCNJ 78, at 90, it was held per Karibi-Whyte J.S.C. that where the claim of the plaintiff as disclosed in the writ of summons and statement of claim was not supported by the evidence at the trial, the action is bound to fail. See also Ogiamen v. Ogiamen (1967) NMLR 245; (1967) 1 All NLR 191. On this point alone, the plaintiff deserved the dismissal of his claim.
The appellant’s arguments that it is common ground that both parties admitted the partition of their father’s property between them; and the judgment is invalid as there were other children of their father not joined in the action as proper parties as well as other parcels of land not in dispute is an invalid argument both in logic and in law.
First, the plaintiff had the onus to prove the partition line. Section 137 Evidence Act, 1990 Laws of Nigeria. Secondly, the question that other children as proper parties who were not joined in the action rendered the trial invalid is a red herring he dragged into the case. He was the plaintiff and he had the duty to join as plaintiff or defendants those he considered proper parties. His complaint in that regard is baseless. See Amechree v. Newington (1952) 14 WACA, 97, at 99; McCheane v. Gyles (No.2) (1902) 1 Ch. D. 911, at 917; Oriare v. Government of Western Nigeria (1971) All NLR 138, at 141. If any of those joined held the view that he was not a proper party, he had the duty to move the court in limine to strike out his name as a party. Such a complaint is more acceptable from a defendant. Green v. Green (1987) 7 SCNJ 255; (1987) 3 NWLR (Pt.61) 480.
The question whether there should have been an order of non-suit or striking out therefore did not arise. An order of non-suit means giving the plaintiff a second chance to prove his case. The court has to consider whether that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiff. See Craig v. Craig & anor. (1966) 1 All NLR 173, at 177. In Anyaoke v. Adi (1986) 3 N.W.L.R. (Pt.31) 731, at 744, the Supreme Court refused an order of non-suit having considered on Order 48 Rules 1 & 2 of High Court Rules Cap.61 Laws of Eastern Nigeria 1963 that a court may only non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court, and as the appellants sought a discretionary remedy of a declaration of title to land which they failed to prove, a non-suit would be unjust to the defendants/respondents. See also my humble contribution on this point in Dantubu v. Ademe v. Adene (1987) 4 NWLR (Pt.65) 314. To order a non-suit in this case would be unjust to the defendant. See Awosanya v. Algata & Anor. (1965) 1 All N.L.R. 228, at 230. There is no question of striking out the case. An order striking out a case is appropriate inter alia when a party lacks competence or locus standi or the court lacks jurisdiction or competence.
In the circumstances, this appeal fails and is dismissed seriatim and in toto with N450 costs to the respondent.
Other Citations: (1992)LCN/0139(CA)