Chief Joseph Olanudu & Anor. V. Moses Temiye & Ors. (2001)
LawGlobal-Hub Lead Judgment Report
IBIYEYE, J .C.A.
This appeal is against the judgment of Ajayi, J. of the Okitipupa Division of Ondo State High Court delivered on the 9th of October, 1992 in Suit No. HOK/32/87.
The appellants as plaintiffs in the court below claimed against the respondents as defendants the following reliefs in paragraph 30 of their joint statement of claim:
“(a) A Declaration that the descendants of Jatunwase/Lubawo, Olanudu Ayekun, Jaiye and Baba-Agba- the founders of Moboro villages in Ilaje/Ese Odo Local Government Area of Ondo State, they are entitled to continue to enjoy undisturbed, their ancient ownership and possession of the villages – Moboro – Nla and Moboro Kekere farm lands respectively and their adjourning fishing grounds and bush lands.
(b) Plaintiff’s lands by the defendants and their Urhobo agents, on or about the 2nd November, 1987 is an act of trespass and unlawful interference with the plaintiffs’ ancient and peaceful ownership and lawful possession of Moboro farm lands and fishing grounds.
(c) N7,500.00 being special and general damages arising from trespass and unlawful occupation of the plaintiff’s farm land and exploitation of palm trees at Moboro Nla bush land by force and for the wanton destruction of economic trees on the plaintiff’s land on or about the 2nd day of November, 1987.
(d) Perpetual Injunction restraining the defendants, their agents, servants, privies or howsoever from remaining on and/or committing further acts of trespass on the plaintiff’s land at Moboro village and its adjourning fishing grounds and farm lands.
The defendants on their part filed a statement of defence and counter-claim. Since the averments in the counter-claim deal largely with the Island of Oriyanrin which is outside the contention between the plaintiffs and the defendants, I shall not reproduce any part of it. Paragraphs 6, 9, 10, 14, 18 and 25 of statement of defence are of moment and they read:
“6 .Contrary to the averments in paragraphs 4, 6, 7, 23, 24, 25, 27 and 28 of the statement of claim, plaintiffs are not the owners of the land at Moboro because the grand father of each of the plaintiffs was a stranger at Moboro.
(a) Came from Oyo in Oyo State and was married to a daughter of Ologbosere at Orere-ara.
(b) The grand father of the 2nd plaintiff was also a son-in-law to Ologbosere; he came from Owo, married a daughter of Ologbosere and settled with him (Ologbosere) at Orere-ara.
- Jatunwase Ologbosere founded Moboronla and later moved from there to settle at Orere-ara. His children Jaiye and Upenta remained there for many years, farming and fishing.
- The plaintiffs did not and do not live at Moboronla at all.
- The 1st, 2nd and 3rd defendants and other members of their Asisa family of Imoluwa fish around the Island of Oriyanrin and built huts or camps which they rent to Calabar people (including the 4th defendant) who tap palm wine and brew local gin there.
- The defendants deny categorically that they ever trespassed on plaintiffs’ land at Moboronla nor built any camps or structures thereon contrary to the averments in paragraphs 7,8,9,13,14,15 and 26 of the statement of claim.
- Save as is hereinbefore specifically admitted or not admitted the defendants deny each and every allegation of facts contained in the statement of claim as though same were herein set forth and traversed seriatim.”
At the trial, the two plaintiffs testified individually by giving traditional history of their roots of title to Moboro lands. The PW1 testified mainly that he saw the defendant’s agent on Moboro lands and reported to the plaintiffs who caused their (defendant’s agents) arrest by the police and they were taken to Igbekebo Police Station where the 1st, 2nd and 3rd defendants went to bail them out. The PW2 was a qualified surveyor who drew the survey plan (Exhibit B) of the land in dispute.
The three defendants save the 4th defendant testified mainly on their ownership of the Island of Oriyanrin and the 1st defendant in particular said that he put the 4th defendant on Oriyanrin as a tenant. Four witnesses testified on behalf of the defendants. Thus, the DW1 and DW2 testified on the defendant’s ownership of the Island of Oriyanrin. DW3, the Acting President of Grade II Customary Court Igbekebo testified that he was delegated by the trial Judge to visit the imagined locus in quo at Moboro-Nla, Moboro Kekere and Oriyanrin. He did so and his findings are in evidence as Exhibit A. The DW4, an unqualified surveyor tendered a survey plan (Exhibit C) drawn in his presence by a qualified surveyor who did not testify.
At the close of taking evidence, the learned counsel for both parties addressed the court. In a considered judgment, the learned trial Judge held, inter alia:
“From all I have said above, I hold that the plaintiffs have not made a case against the defendants and the suit is accordingly dismissed.”
The plaintiffs as appellants were dissatisfied with this decision and appealed to this court on five grounds. They subsequently sought and got leave of this court to file five additional grounds of appeal.
The appellants framed the following issues as arising from the ten grounds of appeal.
“A. Whether the learned trial Judge was right in holding that there was no land dispute in this case.
B. Whether or not the incident which triggered the action occurred on Moboro land.
C. Whether the identity of the land in dispute was in issue on the pleadings and at the trial.
D. Whether the lower court properly appraised, evaluated and consider, (sic) the totality of the evidence, oral or documentary before it.
E. Was the learned Judge right in admitting the respondent’s survey plan as Exhibit C and relying on the same in the proceedings leading to the judgment appealed?
Was the learned trial Judge right in delegating his judicial powers/functions of visiting the locus in quo to a stranger to the proceedings? (The outcome greatly influenced the mind of the learned trial Judge).”
The respondents in their amended brief of argument identified the following four issues for the determination of this appeal:
“2.02. Whether the lower court was right to have dismissed the appellant’s case.
2.03. Whether from the pleadings and evidence adduced before the lower court, the incident which triggered the action (trespass) occurred on Moboro land.
2.04. Whether the identity of the land in dispute was an issue on the pleading and evidence.
2.05. Whether the appellants can rightly challenge the delegated judicial function of the court to a member of the Customary Court when it was not an issue before the lower court.”
At the hearing of this appeal, Chief A. O. Ajana and Segun Odusola, Esq., the learned counsel for the appellants and the respondents respectively adopted and relied on the parties’ briefs of argument.
The issues formulated by the appellants appear more comprehensive than those identified by the respondents. I shall adopt the appellant’s issues for the determination of this appeal.
On issue 1, the learned counsel for the appellants referred, to the conclusion of the learned trial Judge at page 178 lines 5 to 8 of the printed record where he stated as follows:
“The defendants also conceded that they have no claim over Moboro nor are the plaintiffs claiming Oriyanrin.”
Therefore there is no land dispute in this case and submitted that the foregoing pronouncements ignored the specific averments in paragraphs 6(a) and (b), 7, 8, 9, 10 and 11 of the amended statement of defence where the respondents joined issue with the appellants.
He further submitted that if the respondents shifted their position from the pleadings, the trial court had a duty to ignore any such attendant evidence on the fundamental principle that parties are bound by their pleadings and relied on the case of Ajikawo v. Ansaldo (Nig.) Ltd. (1991) 2 NWLR (Pt.173) 359 at 375.
Learned counsel equally submitted that the appellants specifically pleaded their title and ownership of Moboro land in paragraphs 4, 6, 7, 23, 24, 25, 27 and 28 of the statement of claim and the respondent denied and challenged the appellant’s claim and that these claim and denial constituted a dispute in land and he relied on the case of Akintola & Anor v. Solano (1986) 2 NWLR (Pt.24) 598.
Learned counsel further submitted that any evidence which is contrary to or at variance with the pleadings whether extracted in chief or under cross-examination goes to no issue and should be disregarded in keeping with the principles enunciated in the cases of Aniemeka Emegokwue v. Jam Okadigbo (1973) 4 SC 113 at 117; North Western Salt Co. Ltd. v. Electrolytic Alkali Co. Ltd. (1914) AC 461; Abdul Karimu Lemonu & Ors. v. Alli-Balogun (1975) 3 Supreme Court 87, (1975) 111 UILR 319 at 323 and Nwawuba & Ors. v. Enemuo & Ors. (1988) 1 NWLR (Pt.78) 581,(1988)SCNJ 154 at 166 and 167.
Learned counsel therefore urged the court to grant relief one (supra) as the decision of the learned trial Judge was based on erroneous view of the relevant law.
In reply to issue 1, the learned counsel for the respondents appeared to have conceded that they denied that Moboro land belonged to the appellants but that it (Moboro land) instead, belonged to Ologbosere family. He referred to the evidence adduced by the respondents who made it clear that the respondents did not lay claim to ownership of Moboro land but Oriyanrin. He further submitted that that was in line with the averments in the statement of defence and not at variance with them. He urged the court to hold that the learned trial Judge was right in holding that there was no land dispute in this case and was therefore justified in not granting the appellant’s relief A. (supra).
The learned counsel for the appellants in the reply brief maintained that the respondents joined issue with the appellants on the ownership of Moboro land.
The pertinent question to ask with regard to- issue 1 is: Was the learned trial Judge right in holding that there was no dispute on Moboro land in this case? It is settled that it is from the state of pleadings that the court will decipher whether the parties have joined issue or issues for its determination. Where therefore the plaintiff makes a claim and the defendant denies it in the pleadings that constitutes a dispute between the parties in law. See Akintola & Anor v.Solano (supra) at page 623.
It is also trite that at the hearing of such an action, only the averments in the statement of claim and the statement of defence survive and it is on these averments that issue or issues will be joined and evidence led.
It is further settled that any evidence which is contrary to or at variance with the pleadings whichever way it is procured, goes to no issue and it should be discountenanced. See Emegokwue v. Okadigbo (supra) at 117.
In the instant case, the appellants positively asserted ownership of Moboro-Nla and Moboro Kekere lands and traced root of title to their ancestors in paragraphs 4,5,6,7,23,24,25,27 and 28 of the statement of claim.
The following averments at the risk of repetition were made particularly at paragraph 6 of the statement of defence:
“6. Contrary to the averments in paragraphs 4, 6, 7, 23, 24, 25, 27 and 28 of the statement of claim, plaintiffs are not the owners of the land at Moboro because the grand father of each of the plaintiffs was a stranger at Moboro.
(a) The grand father of the 1st plaintiff came from Oyo in Oyo State and was married to a daughter of Ologbosere at Orere-ara.
(b) The grand father of the 2nd plaintiff was also a son-in-law to Ologbosere; he came from Owo, married a daughter of Ologbosere and settled with him (Ologbosere) at Orere ara.”
(italics for emphasis).
The foregoing averment by the respondents is an overt specific denial of the appellant’s claim over Moboro land and accordingly raised a live issue between the two parties. These positive claim and specific denial by the appellants and respondents respectively obviously constituted a dispute over Moboro land. Despite this adverse claim by the respondents, the learned trial Judge at page 178 of the record of proceedings held, inter alia:-
” …I now sih (sic) to examine the merit of the case.
The plaintiffs are maintaining that the tenants were found and arrested at Moboro while the defendants maintained that, indeed, they were arrested at the instance of the plaintiffs but they were arrested at Oriyanrin. The defendants also conceded that they have no claim over Moboro nor are the plaintiffs claiming Oriyamin.
Therefore there is no land dispute in this case… ”
(Italics for emphasis).
It appears from the foregoing that the learned trial Judge considered the totality of the evidence before him and arrived at the conclusion in clear language that there was no land dispute between the appellants and the respondents. I agree with the learned counsel for the appellants that the learned trial Judge ought to have known, with due regard, that it is from the pleadings and not evidence adduced that an issue or issues are raised or deciphered to ground him jurisdiction in any given case. Furthermore, the learned trial Judge should have ignored the evidence led on Oriyanrin land which was not the land in dispute. It is a fundamental principle that parties are bound by their pleadings. Where evidence is led outside the issues raised in the pleadings, such evidence is inconsequential and should be discountenanced by the trial court. See Osasuwa v. Edo State Civil Service Commission (1999) 4 NWLR (Pt.597) 155 at 162 and Ajikawo v. Ansaldo (Nig.) Ltd. (supra) at page 375.
I therefore totally agree with the submission of the learned counsel for the appellants that the learned trial Judge, with due respect, based his decision and in particular the issue of whether or not there was a land dispute between the appellants and the respondents on a wrong conception of the law which in effect occasioned miscarriage of justice.
It is obvious that both in the statement of defence and the supporting evidence, the respondents considerably dealt with the issue of Oriyanrin land and their uncontroverted ownership of it. The fact, however, still remains that one of the main functions of any court or tribunal is to identify the controversy or controversies between parties before it and resolve them. No reasonable court will expend time on non-contentious issues. In the instant case, the respondents for undisclosed reason veered off the contentions stance they took at particularly paragraph 6 of the statement of defence which in fact conferred jurisdiction on the court below in this matter into a no issue.
One could properly deduce from that glaring digression that it is meant to deceive the trial court by deliberately confusing issues.
In these circumstances, the trial court should have been guided by the maxim: “Nullus commodum capere potest de injuria sua propria” that is to say no man can take advantage of his own wrong.
See Adimora v. Ajufo & Ors. (1988) 3 NWLR (Pt.80) I Supreme Court, 6 SCNJ 18 at 27. In the instant case, the learned trial Judge appeared to have allowed the respondents to take advantage of their deceit when he entered judgment in their favour based on the case they made on Oriyanrin land which was not in dispute. I am of the strong view that the decision is perverse and has accordingly occasioned miscarriage of justice. It is trite that an appellate court will not interfere with the findings of fact of a court of first instance except, inter alia, they were reached as a result of a wrong application of some principles of substantive law or procedure. See Woluchem v. Gudi (1981) 5 SC 291 at 295-296 and 326-329; Ifeanyi Chukwu Osundu Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt.625) 1 at 18; Ajagungbade III & Ors. v. Laniyi & Ors. (1999) 13 NWLR (Pt.633) 92 at 113; Nwobodo v. Onoh (1984) SCNLR 1, (1984) 1 SC 1 at 53; Ogbuehi v. Governor of lmo State (1995) 9 NWLR (Pt.417) 53.
In the instant case, the finding of fact of the learned trial Judge that there is no land dispute in this case is, in the surrounding circumstances of this case, a fundamental misconception of the law on what constitutes a triable issue.
Apart from the foregoing misconception, the learned trial Judge appeared to have erred in other aspects such as, first, according probative value to a survey plan (Exhibit C) made available to the court by an unqualified surveyor. Secondly, he delegated his judicial function by commissioning the Acting President of Igbekebo Customary Court to inspect the imagined locus in quo and utilizing the report therefrom in his judgment. This approach to say the least, with due regard, was utter dereliction of duties of hearing, seeing and observing during trial by the learned trial Judge. Thirdly, he made the identity of Moboro land an issue when indeed it was not.
It is apparent from the briefs of argument in this case that the judgment entered in favour of the respondents in the court below is replete with serious misconceptions of the laws. In these circumstances, it will be purely academic to delve into other issues raised in this appeal by the appellants as the learned trial Judge apparently deviated from the Iive question of which of the parties has customary right of occupancy over Moboro land being the subject matter in controversy into non-contentious Oriyamin land. I am therefore of the strong opinion that to sustain such decision will amount to perpetuating miscarriage of justice. I shall accordingly not uphold a decision that is patently perverse. I shall instead consider a retrial.
A retrial is ordered generally when a trial court makes a mistake of law, misdirects itself, wrongfully rejects or admits evidence which has affected its decision one way or the other or has occasioned a miscarriage of justice.
A further settled principle is that an order for retrial invariably implies that one of the parties, usually the plaintiff, is being given another opportunity to relitigate the matter. However, before deciding to make this order, an appellate court should satisfy itself that the other party will not thereby be wronged to such an extent that there would be a miscarriage of justice.
See Alhaji Inuwa Dalltlllnbu v. Chief Peter Adene & Ors. (No.1) (1987) 4 NWLR (Pt.65) 314 at 329 and 330; Bakare v. Apena & Ors. (1986) 4 NWLR (Pt.33) I at pages 16 and 17 and Ayoola v. Adebayo (1969) 1 All NLR 159.
In the instant case, the learned trial Judge in the prevailing circumstances of this appeal appeared, to have comprehensively erred on the side of due consideration of the issue in controversy. I am satisfied that the respondents will not be wronged in any way occasioning miscarriage of justice by ordering a retrial of this case before another Judge. See Adigun v. A.-G., Oyo State (1987) 1 NWLR (Pt.53) 678; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44; African Continental Bank Plc. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt.405) 26 and Ayisa v. Akanji (1995) 7 NWLR (Pt.406) 129.
In the final analysis, the appeal succeeds. The judgment of the trial court is set aside. I order the re-trial of this case before another Judge. The respondents shall pay costs of N5,000.00 to the appellants.
Other Citations: (2001)LCN/1025(CA)
