Bale Adegbaiye & Anor V. Josiah R. Akinrimisi & Anor (1974)
LawGlobal-Hub Lead Judgment Report
B. A. COKER, J.S.C.
In the High Court, Ondo, Western State, the present appellants (as plaintiffs) sued the present respondents who were the defendants to the action for the following claims:
“1. Declaration of title to the piece or parcel of land situate at Ita Luwowo Akure Road, Ondo District.
- 300 pounds being general damages for trespass committed by the defendants upon the said land in or about October, 1959, by entering the said land and gathering palm fruits thereon.
- Injunction to restrain the defendants, their servants and/or agents from entering or doing any act upon the said land.”
The parties duly filed their respective pleadings and there was mutual agreement between them concerning the identity of the land in dispute. The plaintiffs claim by their statement of claim that the said land originally belonged to an Oshemawe of Ondo, by name Ajishowo, who had granted same to his son Adegboemi who entered into possession of the said land, built a village thereon called Ita Luwowo and generally exercised all rights of possession over the said land until his death when he was succeeded by his son Aderobu.
The statement of claim also avers that during the era of the son and in consequence of the “Kula and Ago War”, the peoples of Ondo and surrounding area, including the land in dispute, deserted their holdings and fled but after some 45 years returned to their original homesteads and settlements and re-occupied the several places on which they had farmed before their exodus. The statement of claim further avers that thereafter the successors of Aderobu in turn held and occupied the land in dispute until it came to the time of the present plaintiffs when the present action was sparked off by the action of the defendants in putting Sobo tenants on the land after having unlawfully “broken and entered” into the said land.
The defendants’ statement of defence avers that the defendants and their ancestors had always owned the land in dispute and that by virtue of their right of ownership they had always exercised all rights of possession over the said land including the right to place tenants on the said land. The statement of defence claims that the progenitor of the defendants, one Ligba, who originally owned the land, granted it to his daughter, Famukomi, after whose death successive heads of the Ligba family had similarly exercised dominion over the said land. The statement of defence further claims that Ajishowo, before he became Oha Oshemawe, was a tenant on the said land of the aforementioned Famukomi and that after Ajishowo became the Oshemawe of Ondo, he left the land and that same had since been occupied by his descendants including the present plaintiffs.
At the trial, the plaintiffs gave evidence and called six witnesses in support of their case, some of the witnesses being their boundary men. In the course of the cross-examination of the second plaintiff, Kadiri Buraimoh, the defendants obtained from him an admission that the Oba of Ondo is the owner of all lands in Ondo; but the witness denied the suggestion put to him that Ajishowo was ever a tenant on the land in dispute before he became the Oshemawe of Ondo. The defendants thereafter gave evidence in support of their pleadings. The first defence witness, Chief Akindipe Oloyimi, was testifying as to a grant of the land to Ligba “as compensation for what Ligba did to the Oba”.
There was objection to this piece of evidence by learned counsel for plaintiffs on the grounds that the grant to Ligba was not pleaded and that it was not part of the case of the defence on the pleadings that Ligba ever had a grant of the land from the Oba of Ondo, the defence case on the pleadings being that Ligba was the original owner. The learned trial judge upheld the objection and ruled that “evidence of gift of the land to Ligha by Oba Ondo” would be discountenanced. This witness, i.e. Chief Akindipe Oloyimi, further testified that he had put Sobo tenants on the land in dispute in exercise of his right of ownership and that one Baigbe, a tenant claimed by the plaintiffs to be their head-tenant on the land, was in fact a tenant of the defendants.
The first defendant, by name Josiah Raphael Akinrimisi, also testified for the defence. He gave evidence concerning the possession of the land by the defendants and also concerning the grant of the land by an Oba of Ondo, by name Aganmede, to their ancestor, Ligba. In the same way, the fourth defence witness, Isaac Akingbola, testified as to the grant of the land to Ligba by Oba Aganmede.
After the conclusion of evidence, the parties by their respective counsel addressed the court at length and the learned trial judge reserved judgment for a named date.
Before that date, however, the defendants filed a motion as against that date, asking for leave to amend their statement of defence, manifestly in order to aver some three paragraphs designed to plead the story of the grant to Ligba by Oba Aganmede. This application was opposed by learned counsel for the plaintiffs and in the course of his judgment the learned trial judge refused the application to amend the statement of defence. By his judgment, the learned trial judge stated as follows with respect to their attempts to give evidence as to the grant of the land to their ancestor, Ligba:
“At the hearing, an attempt was made to introduce a fresh origin of title based in one Oba Aganmede. This attempt was promptly objected to by learned counsel for the plaintiffs and conceded by the learned counsel for the defendants who gave an undertaking not to pursue the issue, which was not pleaded. The court accordingly ruled that issues connected with this newly introduced origin of title should be discountenanced. It was noticed that in the course of the hearing, some other witnesses made reference to this grant to Ligba by Oba Aganmede but in accordance with my ruling, even though they are in evidence, they are for the purpose of this case discountenanced.”
The learned trial judge later dealt extensively with the merits of the case after giving his reasons for refusing the defendants’ application to amend their statement of defence. He directed himself that both parties admitted that all lands in Ondo belong to the Oba of Ondo, and then observed as follows:
“I have noted in the course of the evidence that they themselves admitted, as did the plaintiffs, that the land was stool land It therefore became apparent that anybody claiming title thereto should be able to trace his title to a grant by an Oba. The realisation of this fact, in my view, would appear to explain the reason why at the last moment the defendants made a futile attempt to trace origin to one Oba Aganmede. I do not believe that Oba Aganmede made any grant to them or that Ligba was ever in possession of the disputed land from time immemorial…….
It is significant that even though both parties admitted that Baigbe was a tenant to both of them on the land in dispute, yet the defendants were unable to call any relation of Baigbe to testify in support of their claim that Baigbe was their own tenant. On the contrary, the 5th Prosecution witness, the son of Baigbe and the present head of the tenants on the disputed land, and principal collector of Ishakole, testified for the plaintiffs and admitted that they are his landlord on the land to whom he paid regular tributes….
I must say that I accept the story of the plaintiffs as to their origin of title as true. I disbelieve that of the defendants and reject it.”
The learned trial judge, as stated before, then gave judgment in favour of the plaintiffs in accordance with their writ. The defendants appealed to the Western State Court of Appeal against this judgment, complaining in substance that the learned trial judge wrongly refused to exercise his discretion in their favour to grant the amendment, which they had sought at the stage that they did seek the amendment. The Western State Court of Appeal acceded to their complaint, allowed their appeal and ordered that the case should go back to the High Court for retrial by another judge and with the direction that the defendants’ application for amendment be granted. Concerning the refusal of the learned trial judge to grant the amendment requested by the defendants, the Court of Appeal observed as follows:
“Plaintiffs claim ownership through a previous Oba of Ondo. The defendants claim ownership through one Ligba but applied to amend their statement of defence to aver that the land had first been given to Ligba by an Oba of Ondo. To allow such an amendment could not, in our view, have prejudiced the plaintiffs. This is so because evidence had been led on the point by the defendants and the plaintiffs have cross-examined the witness. To allow the amendment would only have served the useful purpose of keeping the consideration of the case within the evidence in its support.”
The Western State Court of Appeal then considered the desirability of making the order of amendment and condemned the avowals of the learned trial judge not to countenance any evidence given by the defendants concerning the gift of the land by Aganmede, the Oba of Ondo, to their ancestor, Ligba. The Court of Appeal finally observed on this point, concerning the learned trial judge, thus:
“By this he shut the door against the consideration of evidence that would have helped him in arriving at a just decision. It would have been a different matter if no application for amendment was ever brought; in that case it would have been proper to reject evidence not related to the pleading in accordance with the decision in Akinloye & Anor. v. Bello Eyiyola & Anor. (1968) N.M.L.R. 92 at p. 95.
But surprisingly he went on to make a finding on the evidence he had said he would not countenance when he said:
‘I do not believe that Oba Aganmede made any grant to them or that Ligba was ever in possession of the disputed land from time immemorial’ .
Also when the judge accepted the story of the plaintiffs ‘as to their origin of title’ as true and disbelieved that of the defendants and rejected it, he had already prevented himself from looking at the whole case as presented by the defendants as to the origin of their title.”
The plaintiffs, apparently aggrieved at this decision, have appealed to this Court complaining that the Court of Appeal should not have deprived them of the judgment which they have obtained in the High Court since that judgment is the outcome of a full and exhaustive consideration of all the issues raised between the parties, including the issue of the grant of the land by Oba Aganmede to the defendants’ progenitor, Ligba. Before us at the hearing of the appeal, learned counsel for the plaintiffs frankly conceded that the Court of Appeal was right in saying that inasmuch as the learned trial judge had himself (perhaps wrongly) admitted evidence from the defendants as to the grant by Oba Aganmede to Ligba, he should have granted the amendment sought which as the Court of Appeal observed was sought in order to keep “the consideration of the case within the evidence in its support”.
Learned counsel however argued that despite his rejection of the application of the defendants to amend their statement of defence the learned trial judge, as indeed found by the Western State Court of Appeal, nevertheless proceeded to examine the evidence (howbeit wrongly admitted) of the grant by Oba Aganmede to Ligba and that as the records indisputably show, the learned trial judge expressly disbelieved and rejected that story. On the other hand, before us learned counsel for the defendants argued that the learned trial judge either did not consider the evidence of the grant to the ancestor of the defendants since he had rejected their application to amend the statement of defence, or was wrong in his consideration of the evidence of the grant since it was illegally admitted as it was not supported by the pleadings.
We are unable to accept the contention of the learned counsel for the defendants and in the same way we cannot accept the conclusions to which the learned judges of the Court of Appeal had arrived on the plain facts of this case and the comments of the learned judges themselves who had heard and decided the defendants’ appeal. It is indisputable that after deciding to discountenance all evidence given by the defendants in support of their claim to a grant of the land to their ancestor by Oba Aganmede, the learned trial judge did accept evidence from the defendants’ witnesses on the same point. Learned counsel for the plaintiffs, Mr. Oduwole, informed us that such evidence was given on occasions during the trial when he was not in court and the case was being handled on his behalf by a junior counsel and the records seem to support this story. It cannot be gain said that such evidence was given and received. Learned counsel for the defendants before us conceded this, but argued that such evidence had been “illegally” given and/or received, even though such evidence had been given at his own instance. The Court of Appeal saw this situation and brought it out in clear comments touching that circumstance and indeed held that for that reason alone, the learned trial judge should have granted the amendment sought by the defendants.
But the Court of Appeal is vested with powers to do all such things and make all such orders as the court of trial could rightly do or make in the same circumstances for section 18 of the Court of Appeal Edict (Western Nigeria Edict No. 15 of 1967) states as follows:
“18. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings or any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the High Court in its appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
If only the Western State Court of Appeal had by virtue of its powers amended the defendants’ statement of defence, then what the learned trial judge received in evidence concerning the grant to Ligba (and characterised by learned counsel for the defendants as having been “illegally” received) would be put in correct perspective and without any further ado, the entire proceedings would be regularised. That done, the learned trial judge would have had before him the pleadings and the evidence of the defendants concerning the gift from oba Aganmede to their ancestor, Ligba, as well as what all parties would agree was a just consideration of that issue and its ultimate rejection by the learned trial judge. This course is taken by the Court of Appeal, as it should have been taken, would have obviated the order of retrial; it would have avoided a great deal of consequent expenses to the litigants and it would have served the end of terminating the proceedings one way or the other.
Learned counsel for the plaintiffs who now sees the whole picture better, conceded before us that he should not have opposed the application to amend the statement of defence in those circumstances and indeed would have supported the making of the order in order to regularise the already existing situation. The defendants of course cannot now oppose the making of the order since they asked for it, and the refusal of their request was the reason for their appeal to the Western State Court of Appeal. We would therefore amend the defendants’ statement of defence as sought by them in their motion, dated the 1st of June, 1970, and direct that their original statement of defence be substituted by the amended statement of defence described as Exhibit “A” and attached to the affidavit of Josiah Akinrimisi, sworn on the 24th June, 1970, in support of the same motion.
We now proceed to consider the effect of the amended statement of defence upon the whole case. We observe in agreement with the Court of Appeal that the learned trial judge did in fact proceed to consider the evidence of the grant of the land to Ligba by Oba Aganmede. This of course is correct and on that basis there is no room for saying as the Court of Appeal stated that by the rejection of the application to amend, the learned trial judge had shut the door to a consideration of the case of the defence. He did not do so, for in fact he went on to consider that issue (and reject it) as well as the other pans of the defence case (and disbelieve them).
It was not argued before us nor could it have been argued that the learned trial judge was not entitled to prefer the evidence which he had accepted, for better than any court of appeal, he had the singular advantage of seeing and hearing the witnesses and therefore of appraising their evidence and assessing their credibility. He had indeed done so and we are not in any doubt that his findings of fact are abundantly justified by the evidence, which he had preferred and accepted.
The appeal of the plaintiffs to this Court therefore must and does succeed and it is allowed. The judgment of the Western State Court of Appeal, setting aside the judgment of the High Court, Ondo, in favour of the plaintiffs and ordering a retrial of the case, is itself set aside and the judgment of the High Court, Ondo, in favour of the plaintiffs is restored in toto together with the order for costs. This shall be the judgment of the Court.
The plaintiffs shall have the costs of the appeal to this Court and to the Court of Appeal fixed, with respect to the Court of Appeal at N5 and with respect to this Court at N160 payable by the defendants.
Other Citation: (1974) LCN/1884(SC)
