Chief James Oluseyi Olonade & Anor V. H. Babatunde Sowemimo (2014)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Ibadan Division of the Court of Appeal hereinafter referred to as the court below, affirming the decision of the Ogun State High Court, hereinafter referred to as the trial court. The Judgment of the court below being appealed against was delivered on 28th day of May, 2003. The trial court’s decision the court below affirmed was delivered on 29th July, 1998. The facts of the case that brought about the appeal are as hereinunder summarized.
The appellants as plaintiffs at the trial court, for themselves and on behalf of the Ijesha Community of Abeokuta, sued the respondent who, in addition to being the defendant, also counter-claimed for himself and on behalf of the Joseph Sowemimo Family. Appellants’ claim as contained in paragraph 35 of their further amended statement of claim is for forfeiture, declaration of title, damages and injunction. Respondent’s counter claim is for declaration of title, damages and perpetual injunction in respect of the same piece of land to which appellants’ claim relates. The appellants testified and called four other witnesses in support of their case. They also tendered one document. In defense of the case and proof of his counter-claim, the respondent testified and called six witnesses. He tendered thirteen exhibits, three of which were through PW6, the first appellant.
Plots No. 82 and 86 along Sokenu Road at Oke Ijeun in Abeokuta are in contention between the parties. The appellants assert that the plots form part of the land granted by the Egbas to Ijesha people led by their ancestor Adeleke; that after the grant to them by the Egbas, the Ijeshas have continued to exercise various acts of ownership in relation to the parcel granted to them which acts include grants to many people with respondent’s father, Sowemimo, being one such beneficiary. The grant made to Sowemimo by the appellants’ ancestors is under customary tenancy.
It is also appellants’ case that respondent’s father had built two houses on the land in dispute and, contrary to the terms of the tenancy between them, abandoned the two plots. This explains the re-entry into the land by the Ijesha people who thereafter let the two plots to one Alhaji Saubane Olaogun, the Asiri Abo. The said Olaogun has developed the two plots and rents same out to tenants on behalf of the Ijesha Community.
The respondent, on the other hand, claims that his father derived title to the two plots following absolute grant by Ijeun people, the original owners. The grant to respondent’s ancestor was made many years before the settlement of the Ijesha Community on a nearby land. The respondent denies his father ever being a tenant to the Ijesha Community. He insists that the appellants are trespassers.
In a considered decision, the trial court found that the Ijeshas were not the original owners of the land in dispute and that Sowemimo, respondent’s father, had built his two houses on the land in dispute which he acquired from the Ijeuns long before the settlement of the ljesha Community in Abeokuta. The court further held that there couldn’t have been any customary tenancy, therefore, between the Ijeshas and respondent’s father. Consequently, the court dismissed appellants’ claim and granted respondent’s counter claim in part. It is the dismissal of the plaintiffs appeal against this court decision of the trial court by the court below that brought about the appeal to which this judgment relates. The Notice of Appeal filed on 11th August, 2003, contains five grounds.
Parties have filed and exchanged their briefs of arguments as required by the rules of court. At the hearing of the appeal on 24th February 2014, the said briefs, including appellants’ reply brief, were adopted and relied upon by counsel as parties’ respective arguments for or in opposition to the appeal.
Respondent’s brief contain arguments on the preliminary objection he earlier filed against the competence of the appeal. Learned respondent’s counsel did not however formally move this Court at the hearing of the appeal to now enable the court decide one way or the other on the preliminary objection. In the circumstance, respondent is deemed to have abandoned the preliminary objection and same is hereby accordingly discountenanced. See: Iliya Akwai Lagga v. Audu Yusuf Sarhuma (2008) 6-7 SC (Pt 1) 101, Contract Resource Nig Ltd v. United Bank for Africa Plc (2011) 6-7 SC (Pt 111) 150.
The three issues formulated at page 5 of the appellants’ brief read:-
“(1) Whether the Justices of the Court of Appeal were not wrong or committed misdirection of law when they confirmed the granting of the Respondent’s counter-claim based on two contradictory roots of his title to the land in dispute (Ground 1).
(2) Whether the learned Justices of the Court of Appeal were not wrong in confirming the judgment of the trial court based on acts of possession as opposed to the unproved root of title as pleaded. (Grounds 4 and 5).
(3) Whether the Justices of Appeal (sic) were not wrong in their holding that although the learned trial judge directed the visitation to the locus-in-quo, the failure to eventually visit the locus in quo before judgment did not occasion miscarriage of justice (Ground 3).”
The respondent has adopted the foregoing three issues as those calling for consideration in the determination of the appeal.
On their 1st issue, learned appellants’ counsel submits that the root of title the respondent relies on in proof of his counter-claim is contained in paragraph 9 of the further amended statement of defence. The respondent is required by law, contends learned counsel, to succeed on the strength of his case. The weakness of the defence will not help him. In support of the submission, learned counsel has cited: Ilema v. Akenzua (2000) 13 NWLR (Pt. 683) 92 at 98 – 99, Oluhinde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562 at 580 and Temile v. Awani (2001) 12 NWLR (Pt. 728) 726 at 755.
The lower court, it is contended, has found that respondent’s counter-claim is based on two contradictory roots of title. These findings notwithstanding, the lower court, inspite of the unchallenged evidence of PW2 at page 82 of the record, proceeded not only to affirm the trial court’s dismissal of appellants’ claim but its partial grant of respondent’s counter-claim. The lower court’s failure to make specific pronouncement on respondent’s contradictory root of title and its affirmation of the trial court’s findings inspite of the absence of evidence to support respondent’s pleadings are fatal. Learned counsel urges that the issue be resolved in appellants’ favour.
Responding, learned counsel submits that appellants’ argument under their 1st issue is misconceived. The issue which draws from appellants’ ground one, argues learned respondent’s counsel must be couched and argued within the ambit of the particular ground of appeal. The respondent, it is argued, neither pleaded contradictory roots of title nor did the lower court in its judgment make any such finding. The respondent, it is submitted, in paragraphs 8 and 9 of his further amended statement of defence succinctly pleaded his root of title and relied on traditional history to prove his claim. Nowhere, it is further submitted, has any contradictory fact in relation to respondent’s counter-claim been pleaded. Appellants’ arguments in respect of this issue which neither emanate from respondent’s pleadings nor the lower court’s findings, contends learned counsel, remain unfounded, disingenuous and incompetent. It is urged that in resolving the issue against the appellants the ground of appeal, the issue distilled from same and the arguments advanced thereon be ignored.
Learned respondent’s counsel cannot be faulted that in the resolution of appellants’ 1st issue the pertinent questions to answer are indeed whether respondent’s counter-claim is based on two contradictory roots of title and if so whether the lower court has made specific findings in respect of the pleaded contradictory roots of title. Both sides to the appeal agree that the passage of the lower court’s judgment to which appellants’ 1st ground of appeal from which their 1st issue arises is at page 226 of the record of appeal. They are right.
Again learned respondent counsel is on a firm terrain that paragraphs 7, 8 and 9 of respondent’s further statement of defence contain facts on which respondent’s counter-claim inter-alia hinges. The paragraphs are hereinunder supplied for ease of reference.
“1. The two parcels or land in dispute herein together with the buildings thereon are the properties of Late Joseph Sowemimo the father of the defendant.
- The parcels of land in dispute in this case are within the vast area of land originally settled upon by Ijeun people when Abeokuta was founded by the Egbas around the year 1830.
- Late Joseph Sowemimo (1852 – 1924) got absolute grants of the two parcels of land one after the other from Ijeun Chiefs on behalf of Ijeun people between the year 1893 and 1900 long before the Ijeshas were identified as a group anywhere in Abeokuta.”
The passage in the lower court’s judgment to which appellants’ 1st ground of appeal from which their 1st issue has been distilled and argued is hereunder reproduced for ease of reference.
“The case of the defence on the other land was a total denial of the plaintiffs claim. Instead, the defendant denied ever being a tenant of the plaintiffs, rather he set up a rival claim contending that his late father Late Joseph Sowemimo was the owner of the disputed land. The defendant in setting up his defence put forward two contradictory roots of title of the deceased Joseph Sowemimo. In one breadth, he contended that the parcels of land under reference were granted to his late father and another breadth, he contended that his late father must have bought same. It is however interesting to note that the learned trial judge seemed not to appreciate this apparent conflict in the defendant’s root of title hence he proceeded to hold that he believed that the land belonged to the defendant’s family. Consequently, he granted the declaration sought by the defendant.”
Having summarized respondent’s case in the foregoing, the lower court at page 230 of the record proceeded as follows:-
“At this juncture, it is worthy of note that the defendant’s counter-claim amongst other relief for:-
‘Declaration that Joseph Sowemimo’s family is the deemed grantee of the right of occupancy in respect of 2nd parcels of land with the buildings thereon known as No 82 and 86 Sokenu Road, Oke-Ijeun Abeokuta and more particularly described, delineated and verged Red in the survey plan No. AKN/OG/002/LO/95 dated 25-1-95 drawn by S. O Akinde a Registered Surveyor.’
….In other words the defendant pleaded grant as his root of title” (Underlining supplied for emphasis).
Inspite of the foregoing, the appellants have raised their complaint in their 1st ground of appeal which ground, for ease of reference, is hereunder reproduced:-
“1. The learned Justices of the Court of Appeal misdirected themselves in law in dismissing the appellants’ appeal before them having agreed that the respondent as defendant in his defence put forward two contradictory roots of his title to the land in dispute.
PARTICULARS OF MISDIRECTION
Having held that the learned trial judge seemed not to appreciate the apparent conflict in the defendant’s root of title upon which he gave judgment to the respondent, the Court of Appeal ought to have allowed the appellants’ appeal.”
Looking at appellants’ foregoing ground of appeal, the issue distilled from the ground as well as the arguments advanced thereon, learned respondent counsel is beyond reproach in his submission that appellants’ grouse by virtue of the ground is untenable in law.
Firstly, the averments in the further amended statement of defence of the respondent do not contain the contradiction in the roots of title the appellants assume the respondent has relied upon to prove his counter-claim. It is equally manifest from the passage in the lower court’s judgment to which appellants’ 1st ground of appeal relates that the court did not make the finding ascribed to it on respondent’s purported reliance on contradictory roots of title in proof of his counterclaim. Indeed, as submitted by learned respondent’s counsel, the passage is the lower court’s summary of the case of the respondent rather than the court’s finding on the point. The appellants have even conceded this much at paragraph 5.24 of their amended brief thus:-
“The lower court instead of making a specific pronouncement on the contradictory root of title of the respondent said at page 233 of the record that there was a justifiable finding by the trial court of a continuous possession of the parcels of land in dispute, in favour of the defendants’ family.”
It is beyond one’s understanding that the appellants in their 1st ground of appeal rather than appeal against the decision of the court below have done otherwise. It is settled principle of Law that a ground of appeal must arise, flow from or relate to the judgment of the court appealed from. Any complaint that does not flow from the decision appealed against cannot legitimately be entertained by this Court. See Toudus Services Nig Ltd v. Taisei (W.A) Ltd (2006) 6 SC 200 and Veepee IND Ltd v. COCA IND Ltd (2008) 4 -5 SC (Pt 1) 116. In Atoyebi v. Govt of Oyo State (1994) 5 NWLR (Pt 344) 296 at 305, this Court restated the principle on the point thus:-
“An appeal presupposes the existence of some decision which is appealed against on a given point. Where therefore, there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an appeal for determination by an appellate court. The appellate jurisdiction of this Court inter-alia is to review the decision and/or judgments of the Court of Appeal. lf, therefore, an issue neither arose nor called for the determination of the Court of Appeal which therefore, did not consider the issue, it seems to me that such an issue may not form the basis of an appeal to the Supreme Court and a purported appeal to this Court on such an issue will be incompetent and may be struck out.”
It is for these very principles that appellants’ 1st issue for the determination of the appeal is hereby discountenanced.
I now take the liberty, of considering appellants’ 3rd issue by deferring their 2nd issue for same to be treated subsequently. Learned appellants’ counsel argues that the lower court’s failure to address the trial court’s refusal to visit, having so directed, the Locus-in-quo for the purpose of ascertaining the identity of the land in dispute, is fatal. Exhibits B, C and D which the lower court relied upon in deciding the identity of the land in dispute, submits learned counsel, are inadmissible and unhelpful. The trial court’s directive for the visit to the locus-in-quo far from being a subsidiary issue as held by the lower court remains a central issue as no decision is possible on the issue before the trial court in the absence of certainty of the identity of the land in dispute. Referring to Olusanmi v. Osasona (1992) 6 NWLR (Pt 245) 22, learned appellants’ counsel urges that the issue be resolved in appellants’ favour and the appeal allowed.
In response, learned respondent’s counsel submits that the visit to the sites of the two plots of land in dispute is not a sine-qua-non for the determination of the respective claims of the parties before the court. There is no uncertainty as to the identity of the land in dispute. Parties to the dispute, submits learned respondent’s counsel, are ad idem on the location and identity of the plots in dispute. Courts, it is submitted, must make their decisions within the purview of the pleadings and evidence adduced in proof of pleaded facts. Evidence abound on the basis of which the trial court which decision the court below rightly affirmed, made its findings. Such a finding cannot be set-aside. Relying on Ejidike v. Obiora 13 WACA 270 at 274, learned respondent’s counsel urges that the issue be resolved against the appellants.
The passage in the trial court’s proceedings at pages 124 – 125 of the record of appeal the appellants contend the lower court wrongly addressed read:-
“At this stage, all the parties and their counsel are advised to go back to 82 and 86 Sokenu Road to look at the buildings closely before further cross-examination continues. It is not the practice of this Court to visit the locus-in-quo. The visit by the parties and their counsel will refresh their memories of materials used for the two buildings rooms/shops, location, their sizes of the building, and pieces of land on which they stand. This is necessary so that the court will have a good idea of the two pieces of land and the structures on them.” (underlining supplied for emphasis).
The lower court in addressing appellants’ complaints in relation to the foregoing passage in the trial court’s proceedings stated at pages 235-236 of the record inter-alia thus:-
“In my view the learned trial judge can use his own observation about the state of anything as revealed in evidence to resolve the conflict between the parties on whether the bungalow on No 82 Sokenu Road was thereby converted into shops by the defendant’s family or was totally rebuilt by Saubana Olaogun between 1984 and 1986 as contended by the plaintiffs. See Ejidike vs Obiora 13 WACA 270 at 274………..
In the light of the prevailing evidence and exhibit and contrary to the submissions of the learned counsel to the appellants, I hold that there is no miscarriage of justice arising from the failure of the learned trial judge visiting the site of No 82 and 86 Sokenu Road, Abeokuta, the disputed parcels of land in the instant case.”
I cannot agree more with the lower court. Appellants’ insistence that they still deserve to have the trial court’s decision interfered with inspite of the lower court’s foregoing unassailable stance on the point remains untenable in law. It is a trite principle that it is not every error of law that is committed by a trial or Appellate Court that justifies the reversal of the particular court’s judgment on appeal. For an appellant to secure the reversal of the judgment he appeals against, beyond establishing the error he hinges his complaint upon, he must go the extra mile of establishing that the error complained of and established has substantially affected the result of the decision and/or occasioned miscarriage of Justice. Thus where inspite of the error made out by the appellant the decision appealed against would not be any different the appeal would fail. In such an instance the judgment appealed against would not be disturbed. See A.G. Leventis Nig Plc V. Chief Christian Akpu (2007) 6 SCNJ 242, Oguntayo V. Adelaja & others (2009) 6-7 SC (Pt 111) 91 and Chief Ikedi Ohakim & anor V. Chief Martin Agbaso & 4 Ors (2010) 6-7 SC 85.
In the case at hand the lower court has correctly demonstrated that the visit to the locus-in-quo recommended by the trial court was unnecessary and its non-occurrence does not in any way affect the judgment arrived at on the basis of the pleadings and evidence on record. The trial court’s decision as affirmed by the lower court must therefore persist. The 3rd issue for the determination of the appeal is resolved against the appellants.
Under their 2nd issue, the appellants argue that they had made out a more credible case than that of the respondent. Learned appellants counsel contends that PW2’s evidence has remained unchallenged. PW2, submits learned counsel to the appellants, is the Oluwo of Ijeun and has testified not only to the fact that the Ijeshas were granted the parcels of land which includes the land in dispute 150 years previously, but that no other grant of the same area had been made to any other group of people thereafter. Besides, the evidence of DW7, at page 141, lines 24-25 of the record of appeal, it is submitted, supports appellants’ case. In affirming the judgment of the trial court, contends learned appellant counsel, the court below wrongly placed emphasis on the exhibits tendered by the respondent which are of no probative value. Indeed, submits learned counsel, the exhibits rather than substantiate respondent’s title do otherwise. Learned counsel prays we so find, resolve the issue against the respondent and allow the appeal.
On appellants’ 2nd issue the respondent contends that the appellants who claim being respondent’s overlord must, in addition to proving that fact, establish their right of forfeiture upon respondent’s misconduct to be entitled to the possession and damages they assert. To disprove appellants’ claim, learned respondent’s counsel submits, respondent produced evidence particularly through DW2, DW5 and DW7 of various acts of ownership and possession of the two plots in dispute up to the time this action was commenced. The lower court’s affirmation of the findings of fact of the trial court on the various acts of possession of the respondent in resolving the issue of abandonment, learned respondent’s counsel contends, is what the appellants are challenging under their 4th and 5th grounds of appeal from which their 2nd issue has been formulated.
The appellants, it is further argued, seem however to downplay the added fact that both courts having also found appellants’ claim not established dismissed same. The findings of the two courts, learned respondent’s counsel submits, cannot be otherwise. Appellants’ witnesses, particularly PW2, submits learned counsel, were not precise on the extent and identity of the parcels of land in dispute. The shortcoming coupled with appellant’s inadequate pleadings as to the actual time their ancestors made the grant of the land in dispute to respondent’s father justify the trial court’s dismissal of appellants’ claim and its affirmation by the lower court. On the other hand, it is further submitted, all the exhibits the respondent relied upon in defence of the appellants’ claim and proof of his counter-claim indicate that the Ijeshas, appellants’ ancestors, settled around the disputed plots well after the grant of same to respondent’s father by the Ijeuns, the original founders of the land. Exhibits “G” and “F” tendered by the respondent, it is contended, raise a presumption of genuineness which the appellants failed to rebut. Indeed by Exhibit “F”, PW7, appellants own crony, confirms that the land in dispute is owned by respondent’s family. Relying on Obasohon v. Omorodion (2001) 7 SCNJ 168 at 180, Okereke v. Nwankwo (2003) 4 SCNJ 211 at 226 – 227, Oniah v. Onyia (1989) 1 NWLR (Pt 99) 514 at 532, Akinyili v. Ejidike (1996) 5 NWLR (Pt 449) 381 at 405 – 407 and Aderounmu v. Olowu (2000) 2 SCNJ 180 at 192-193, learned respondent’s counsel concludes that the concurrent findings of fact of the two courts which draw from evidence on record cannot be set-aside. Learned counsel prays that the issue be resolved in their favour and the appeal dismissed.
Learned appellants’ counsel seems to have ignored, and he must be reminded, certain trite legal principles the application of which to the case at hand is inescapable.
Firstly, evaluation of relevant and material evidence and the ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and assessed the witnesses as they testified. Where the trial court unquestionably evaluates the evidence and justifiably appraises the facts, as it has been manifestly shown to have been done in the instant case, it is not the business of the lower court, an Appellate Court, to substitute its own views for the views of the trial court. The application of this trite principle by the lower court cannot, certainly, be a basis for the reversal of the court’s decision. See Magaji v. Odofin (1978) 4 SC 91, Ojokolobo v. Alamu (1998) 9 NWLR (Pt 565) 226 and Sha v. Kwau (2000) 5 SC 178.
Secondly, in a civil matter such as this, the court decides the case on the balance of probabilities or preponderance of evidence. The trial court does this by first deciding which evidence it accepts from each of the parties, putting the accepted evidence adduced by the plaintiff on one side of the imaginary scale and that of the defendant on the other side of the scale and weighing them together. The court then decides which side’s evidence is heavier, not by the number of witnesses called by either party or on the basis of the one being oral and the other being documentary, but by the quality or probative value of the evidence be it oral and/or documentary. See Fagbenro v. Arobadi (2006) 7 NWLR (Pt 978) 174. I agree with learned counsel to the respondent that appellants cannot be heard to propound differently. The trial court having conducted the evaluation of evidence adduced by parties before it in the manner the law requires, the lower court’s endorsement of that court’s judgment remains unassailable.
Finally, learned respondent counsel is again on a firm terrain that this Court is always hesitant to interfere with the concurrent findings of fact of two lower courts. Where an appellant fails to show that the findings of fact he begrudges do not flow from the evidence on record or that the two lower courts have applied the law wrongly to the ascertained evidence, his entreaties that the findings be reversed must fail. See Sokwo V. Kpongbo (2008) 7 NWLR (Pt 1086) 342, and Dumez (Nig) Ltd V. Nwakhoba (2008) 18 NWLR (Pt 1119) 361. The appellants in the instant case having not discharged the duty the law places on them of demonstrating that the concurrent findings of fact of the two lower courts are perverse cannot, therefore, succeed. Having resolved all the three issues the appellants formulated for the determination of their appeal against them, I find the appeal for that reason devoid of merit. Same is hereby dismissed at a cost of N100,000 in favour of the respondent.
SC.265/2003
