Chief Adebayo Bashorun Olufosoye & Ors. V. Johnson O. Olorunfemi (1989)

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OPUTA, J.S.C. 

The Plaintiffs/Appellants claimed in the Court of first instance the following:-

1. “A declaration of title under Native Law and Custom to all that piece or parcel of land situate lying and being at Oke Obara, along Ondo/Akure Road, Ondo, which is more particularly shown and verged Red in plan No. JFO 6642 ……..
2. N1,000.00 being general damages for trespass.
3. Perpetual injunction restraining the Defendant, his servants, agents and privies from committing further acts of trespass on the said land.”

Pleadings and plans were ordered, filed and duly exchanged. Either party in the course of the proceedings amended its original pleading and the case was ultimately fought on the Amended Statement of Claim and the Amended Statement of Defence. After due trial on relevant and available evidence Afonja, J. of the Ondo State High Court dismissed the plaintiffs’ claims as contained in the writ and their pleadings.

Dissatisfied and aggrieved the Plaintiffs appealed, to the Court of Appeal Benin Division, against the said judgment of Afonja, J. In a lead judgment delivered by Ete, J.C.A., (in which Omoigberai Eboh and Okagbue, JJ .C.A. concurred), the Court of Appeal upheld the judgment of the trial court and dismissed in its entirety the appeal of the Plaintiffs. The present appeal to this Court is from that judgment of the Court of Appeal.

The Plaintiffs therefore lost in the two Courts below. From a long line of cases, it is clearly evident that it is the policy of this Court not to interfere with the concurrent findings of the two courts below. This policy is predicated on, and presupposes that, the court of first instance evaluated the evidence, exercised its right to believe or disbelieve witnesses, and then finally arrived at specific findings on the issues of fact arising from the pleadings and evidence as presented to the court for resolution. When that had been done and the Court of Appeal confirms the findings of the trial court, then an appellant is confronted with a rather uphill task. There again, such an appellant will be required to show either that the findings were perverse thus leading to an obvious miscarriage of justice or that there was a violation of some principle of law or procedure:- Enang v. Adu (1981) 11-12 S.C. 25 at p.42: Okagbue v. Romaine ( 1982)5 S.C. 133 at pp.170 and 171; Lokoyi v. Olojo (1983) 8 S.C. 61 at p.68; Ojomu v. Ajao (1983) 9 S.C. 23 at p.53.

Where, however, the trial court made no findings of its own and there is no issue of credibility of the witnesses who testified for the opposing parties, a Court of Appeal will be justified in evaluating the evidence and drawing its own conclusions and inferences from proved or admitted facts, and then deciding the case accordingly. But where both the trial court and the Court of Appeal failed to thus evaluate the evidence and make findings on relevant issues, there one cannot talk of concurrent findings simply because such findings do not exist. And this is the difficulty confronting the parties in this appeal – there were no findings on the issues of title and acts of possession and ownership.

The Plaintiffs) Appellants claimed a declaration of title, damages for trespass and injunction. They pleaded their root of title and relied on their traditional history and descent from their ancestor Jilalu from whom they inherited the land. They pleaded various acts of ownership and possession including grants and sales of portions of the land in dispute to the C.M.S. and Muslim Communities, sales to G.O. Akinfolarin, Ekemode, Roger, Awosika and Bishop Olufosoye etc. The Appellants’ complaint in the Court of Appeal and also before this court was, and is, that the trial court failed to evaluate the evidence and that the Court of Appeal should have done just that and that if that were done there would have been judgment entered in their favour.

This leads naturally to a cool, careful and dispassionate consideration of the 2nd Issue for Determination as formulated by the Appellants in their Brief of Argument:-

Issue No.2.

“Whether the grounds of appeal not considered by the Court of Appeal were material for an effective determination of the issue before it, and whether if considered, the grounds would have had any profound effect on the Final decision”

The Appellants’ Brief then summarised the matters on which issues were joined by the parties as per their pleadings as follows:

“(1) Whether the plaintiffs or the Defendant or his predecessor in title sold land or granted leases as claimed in paragraph 14 of the Amended Statement of Claim and contradicted in paragraphs 14 and 15 of the Amended Statement of Defence.

(2) Whether or not Loduti and Ajaka family established its radical title as based on traditional evidence;

(3) Whether or not Loduti and Ajaka family established ownership of the land in dispute by the exercise of acts tantamount to ownership like selling and leasing parts of the land in dispute as pleaded in paragraph 14 of the Amended Statement of Claim;