Bisiriyu Agbomeji V. Liadi Bakare & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

The claims of the plaintiff who is the appellant in this court against the defendants (herein respondents) as endorsed on his amended writ of summons filed on 12th October, 1977 are as follows:

“1. Declaration that all the entire property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom.

2. Partition of the said land into four parts amongst the four branches of the family namely: Ogeye Longe (ii) Otubose (iii) Otuberu and (iv) Otuboni.
3. N6,000,00 being both special and general damages for trespass to the plaintiff’s building on the land in dispute.”

Particulars

Special Damages

Cost of structure destroyed by the defendant

………………… N5,000,00

General Damages N1,000.00

N6.000.00″

A statement of claim was filed on behalf of the appellant on 14th June, 1976 and to it a composite plan was attached. After the learned trial Judge had fixed the case for trial on 27th and 28th September, 1977, the appellant sought and obtained leave to amend the statement of claim. The amended statement of claim was further amended by court order dated 12th February, 1979. The respondents, on the other hand, made several applications filed on their behalf to amend the statement of defence. The final amended statement of defence was filed on 12th June, 1981. The appellant, in response thereto, filed a reply on 3rd July, 1981. The facts of the case are not in dispute and I do not propose to set them out here.

The case went to trial after the exchange of pleadings and following the addresses of counsel, the learned trial Judge, Agoro, J, held that the case succeeded in part. For his claims for partition of family land and also for N6,000,00 special and general damages, these were dismissed. The learned trial Judge, however, ruled that the appellant was entitled to a declaration that the entire landed property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom.

Aggrieved by this decision, the appellant appealed to the Court of Appeal, Lagos Division (Coram: Nnaemeka-Agu and Kutigi J.J.C.A. as they were then as well as Kolawole, J.C.A who wrote the leading judgment) and dismissed the appeal with costs to the respondents.

The further appeal to this court is against the judgment of the Court of Appeal (hereinafter referred to as the court below) premised on the five grounds of appeal contained in a notice of appeal dated 10th November, 1992. The parties subsequently filed and exchanged briefs of arguments in accordance with the rules of this court. The appellant identified four issues which is pith and substance are identical to the four the respondents formulated for our determination. For the disposal of this appeal, I deem it necessary to stick to the four issues argued in the appellant’s brief (the four issues proffered by the respondents though differently worded are subsumed therein). They state:

“1. Whether the learned Justices of the Court of Appeal were right In affirming the finding of the learned trial Judge that the plaintiff/appellant did not prove any allocation of land to him by the head and principal members of the family.

2. Whether the learned Justices of the Court of Appeal were right in dismissing the appellant’s claims for damages for trespass.
3. Whether the learned Justices of the Court of Appeal were right in holding that the appellant did not make out a case for partition of the family land.
4. Whether, having regard to all the circumstances of this case, particularly issues of fact not resolved at the trial, a retrial ought to be ordered.”

At the hearing of the appeal on 14th April, 1998, learned counsel for the appellant relied on the issues he formulated in his brief dated 28th January, 1993 and made oral expatiation thereon. Arguing first issue 1 (having abandoned issue 2 which was accordingly struck out), the learned counsel for the appellant submitted as follows:

Firstly, he contended that in order to demonstrate proof of allocation of the family property to the appellant the learned trial Judge found unequivocally thus:

“There was evidence before the court by the plaintiff, and supported by Mr. T. A. Sule (PW2), to the effect that a bungalow building with two bedrooms, sitting room, kitchen, bathroom and toilets, was completed for the plaintiff in 1961 on a portion of the land in dispute. The evidence before the court also showed that as a result of the riot or disturbance at Epe in 1975, many buildings and other properties, including the plaintiff’s bungalow and wooden shed, were destroyed by fire ”

Reference was then made to another passage in the trial court’s findings where the learned trial Judge turned round (a stance which the learned counsel for the appellant rightly, in my view, described as most intriguing) when he observed as follows:-

“I find it difficult to accept the story put forward by the plaintiff regarding the destruction or demolition of the bungalow building. His version of the story is at variance with the evidence of the carpenter (PW3).

It seems to me from the totality of the evidence before the court, and I hold as a fact, that the bungalow building was destroyed during the Army riot at Epe in 1975. There is no credible evidence before the court to substantiate the allegation that the first four defendants were the persons who pulled down the walls of the bungalow building:’ (Italics is mine)

I find at a glance the complaint of the appellant to be well grounded. For the learned trial Judge who earlier found that appellant had a bungalow on the allocated land in dispute to now turn round to say that the appellant had no land allocated him there on the land where his house stood, constitutes an inconsistent finding that must not be allowed to stand. See Olale v. Ekwelendu 1989)4 NWLR (Pt. 115)326: M.l.S.R. v. Ibrahim (1974) 5 SC.55; Incar Nig. Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453 and Ramoonu Atolagbe v. Shorun (1985) 4 Sc. (Pt. 1) 250at 285: (1985)1 NWLR (Pt. 2) 360 at 375, the latter in which a perverse decision has been held as one which ignores the facts or evidence and when considered as a whole, amounts to a miscarriage of justice. See also Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1.

In the case in hand, I am of the view that the learned trial Judge was in error to have held that the appellant has failed to substantiate the allegation regarding allocation to him (appellant) of family land vide his pleading in paragraph 10 of (he amended statement of claim. The court below, with due respect, was also in error in affirming that finding. The appellant had in paragraphs 10, 11, and 12 (ibid) pleaded thus:

“10. The plaintiff avers that in or about 1960 one Garba Bakare (now deceased) as the head of Ogehule family granted or allocated to the plaintiff a portion of the land now in dispute for the purpose of putting up a building in accordance with native law and custom.

11. That in or about 1961 the said Garba Bakare with the principal members of Ogebule family came to the aforesaid portion of land and blessed (it) in accordance with the native law and custom of Epe before the plaintiff commenced the building of a bungalow.
12. The plaintiff states further that the bungalow was built of cement blocks, plastered and painted and was in occupation with the plaintiffs mother and family up to 1975.”

The respondents denied paragraphs 9, 10 and 11 but curiously failed to say anything about paragraph 12. Where, one may enquire. was the appellant residing between 1961 and 1975 when the Army riot led to the demolition of his bungalow Indeed, one may further ask, was a bungalow built at all by the appellant or not

On this, the appellant testified as follows:-

“In 1960, the head of the family Garuba Bakare and other principal members of Ogebule family allocated a vacant plot of land now in dispute in this case to me in order to erect a building. I cleared the land and erected a block on the land in 1961………….I moved into the building sometime in November, 1961 with my family. Nobody objected to my living in the house nor did anybody obstruct me during the period of construction.”

The respondents as pointed out earlier denied there was any bungalow built by the appellant. As a matter of fact, not only did DW1 deny that appellant ever lived in the family house at 42/44 Aiyetoro Road, Epe but added that appellant “and his mother lived at Okeposun.”

As I pointed out herein before, since the learned trial Judge in his judgment equivocated between saying (i) that there was no allocation of land to the appellant but (ii) turned round to say “plaintiff’s bungalow and wooden shed were destroyed by fire” and (iii) held that “as a fact that the bungalow building was destroyed during the Army Riot of 1975”, he by implication believed the appellant’s story that he (appellant) erected a bungalow on family land at 42/44 Aiyetoro Road, Epe. If there was no allocation how could the appellant have been on the land from 1961-975,14 clear years without protest until the Army Riot

Having held elsewhere in this judgment that the decision of the trial court was therefore perverse the very act of its perversity will enable me to interfere with the supposed concurrent findings of fact of the two courts below by holding that the portion of land upon which the bungalow was built was allocated to the appellant, See Onwuka v. Ediala (1989)1 NWLR (Pt.96) 182; Atanda v. Ajani (1989) 3 NWLR (Pt. 11) 511. The learned trial Judge had in fact misconceived the appellant’s case ab initio. The court below accordingly, in my view, was also wrong to have affirmed the erroneous conclusion arrived at by the trial court. Allocation of family land, I hold, is the equivalent of a grant. See evidence of DW2 who was present at the allocation of the land by the family head and principal members to appellant. See also the evidence of PW5, Saratu Ogeye – appellant’s mother which was not discredited under cross-examination.

My answer to issue No.1 is accordingly rendered in the negative.

Ever before the oral argument of the appellant’s four issues contained in his brief was embarked upon, learned counsel for him submitted as follows:-

“The appellant abandons ground 2 of the appeal after having read the case of Banko!e v. Pelu (1991) 8 NWLR (Pt. 211) 523.

In consequence, the argument proffered on the issue emanating from it (issue 2) is also deemed as abandoned and it is accordingly struck out.

Turning to issue 3 which inquires whether the learned Justices of the Court of Appeal were right in holding that the appellant did not make out a case for partition of the family land, argument was proffered on appellant’s behalf to the following effect:

That the learned trial Judge refused to make an order for partition on the ground that “it is clear to me from the composite survey plan marked Exhibit D that the Ogebule family land verged “Red” have (sic) been fully utilised by various branches of the family.” This, it is submitted, was a Jl1pst unsatisfactory finding. For instance, it was further contended, no answers were provided to the following questions, to wit:

(a) How many branches does the family have

(b) Was Sangodemuren a child of Ogebule

(c) Was there any family arrangement dividing the family property into two

In the absence of a finding on the number of the branches, how, it is submitted, could the learned trial Judge have determined that the family land “have been fully utilized by the various branches of the family” The learned trial Judge, it is further contended, ignored the evidence that the appellant had been prevented from rebuilding his bungalow and that his mother even testified to that fact, adding that the case of Balogun v. Balogun and all the other cases cited are, with respect, totally irrelevant. The court below, it was further maintained, merely affirmed the finding of the trial court on the ground that “it was amply supported by the evidence adduced before him.”

I see the force in the appellant’s argument. In the first place, it was not incumbent on the appellant in this case to prove absolute grant of that portion of land said to have been granted or allocated to him. Mere allocation of it as a Family member, coupled with its exclusive possession, would he sufficient. After having held that a bungalow was in fact built on a portion of the family land by the appellant, what the learned trial Judge ought to have resolved was whether the trespass that he (appellant) alleged, took place after the riot. This he did not do and so he failed to adjudicate in the case brought before him while the court below misconceived that its role was to set aside the decision thus arrived at. See: Lengbe v. Imale (1959) SCNLR 640 and Ojibah v. Ojibah (1991)5 NWLR (Pt.191 )296. The learned trial Judge himself realised that he failed to make findings of fact on various issues raised in the pleadings when he held:-

“In view of the findings of fact which I have made and decisions reached upon the evidence before the court. it is hardly necessary for me to advert to other matters raised on the pleadings which I consider to be ancillary to the main points already dealt with in this judgment.’

On appeal the court below, in my view, wrongly held after correctly stating the law by holding among other things as follows:-

“It seems to me that in order to invoke the jurisdiction of the High Court, the plaintiff in this action must show not only that some members of the Ogebule family want the family property to be broken up, but rather that it has become impossible to continue to use the land in dispute as family property. See Ajibabi v. Jura (1948) 19NLR 27 and contrast the case of Bajulaiye v. Akapo (1938) 14 NLR 10……………..

I should point out that the jurisdiction of the High Court to order partition in an appropriate case is exercised on the grounds or equity, and, therefore, the order of partition or family property is at

the discretion of the court. In the case in hand, the plaintiff has failed to establish grounds upon which this court should exercise its discretionary power in his favour. Nor do I consider that it would be in the best interest of the branches or members of Ogebule family to order partition of the family property now in dispute in the present action. See Lewis v. Bankole (1908) 1 NLR 81 at 103.”

In view of the above. coupled with my findings in issue 1. I am of the opinion that the learned trial Judge equivocated when he stated that there was no allocation of land to the appellant.

In sum, the learned Justices of the court below were clearly in error in affirming the findings of the learned trial Judge that the appellant did not prove any allocation of land to him by the head and principal members of the family. Also, the learned Justices of the court below were wrong in holding that the appellant did not make out a case for partition of the family land whereas he was able to establish that the four branches of the family could no longer live together as one unit in peace and harmony on the land and to that extent issue 3 is resolved against the respondents.

In the light or answers to issues 1 and 3, issue 4 no longer arises for consideration. The appeal therefore wholly succeeds and it is allowed by me. The decisions or the two courts below are accordingly set aside and I shall proceed to make the following orders:

1. Declaration that all the entire property situate lying and being at 42/44 Aiyetoro Road, Epe in Lagos State is the property of all the descendants of late Ogebule owned under native law and custom.
2. That in the best interest of the branches or members of the Ogebule family, partition of the said family property be made and carried into effect amongst the four branches of the family namely (i) Ogeye Longe, (ii) Otubose, (iii) Otuberu and (iv) Otuboni by the trial court i.e. the Lagos State High Court at the behest of the Chief Judge thereof of.

Costs are assessed in appellant’s favour in the sum of N10.000,00 only.

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SC.312/1991