Chief Kafaru Oje & Anor V. Chief Ganiyu Babalola & Ors. (1991)
LawGlobal-Hub Lead Judgment Report
NNAEMEKA-AGU, J.S.C.
This is an appeal by the defendant against the judgment of the Court of Appeal, Ibadan Division, which had reversed the judgment in favour of the defendants by Delana, J. sitting in an Ogun State High Court holden at Ilaro. The plaintiff’s claim before the High Court, as amended, was for the following reliefs:-
“(1) A declaration of Title that as against the Defendants, the Plaintiffs are the absolute owners under Native Law and Custom of all that piece or parcel of land known as Igodo Farm at Gaun in Ogun State.
(2) Two Hundred Naira (N200.00) being damages for trespass and/or waste committed by the Defendants, their servants and/or agents against the plaintiffs in respect of the said land.
(3) Injunction to restrain the Defendants by themselves, their servants and/or agents or otherwise from continuing or repeating any of the acts complained of above and/or hereunder.
(4) The plaintiffs are the owners of the said land and the defendants and their families by themselves, their servants and/or agents or otherwise have wrongfully entered the said land to fish its rivers and cut trees and valuable crops. The defendants, their families still persist in the said acts and intend to continue and/or repeat the acts hereinbefore mentioned.”
The learned trial Judge, after trial, dismissed the plaintiff’s claim in its entirety on the ground that they failed to discharge the onus of proof all them.
According to the plaintiffs the original settler of the vast area of land of which the land in dispute forms a part was Osho Agoro Olarogun who had settled there over two hundred years ago. At the time Olarogun settled on the land he met a settled community in Gaun, with its Bale. It was in fact the Bale who conferred upon him the title of Agoro of Gaun (sometimes spelt GANUN). Olarogun begat Abidogun who in turn begat, among others, Alaba, a woman. Alaba married Oyede. As a result of this marriage Osho Agoro Olarogun family allowed the couple fishing rights over the river flowing through the land in dispute. However, when Alaba died childless the plaintiffs family allowed Oyede to continue to enjoy the fishing rights over the river on condition of payment of tribute. They continued to pay this until seventy years ago when they refused to pay. As a result of their refusal to pay further tributes, Chief Ashandere brought an action against the second defendant’s family in Ake Grade A Court, Abeokuta, against one Falana a descendant of Oyede and an ancestor of the defendants. A certified copy of the proceedings of that case was tendered as Exhibit E.
Plaintiffs’ case was further that the defendants’ fishing rights over Igodo River had been forfeited or surrendered by their predecessors many years ago, but that as acts of trespass they continued to fish in the river and cut down valuable trees and dig the sand along the basin of the river and its surrounding lands.
The defendants, on the other hand, claimed that the land in dispute and all the surrounding creeks originally belonged to them through their great ancestor, Onilube, who exercised exclusive and undisturbed rights of ownership and possession over it until his death about two hundred years ago. They agreed that Oyede was their ancestor but maintained that he occupied the land as of right as a descendant of Onilube. They also denied that Oyede ever married a wife called Alaba or that there was ever such a woman in their lineage. They also vehemently denied that Oyede or any of the ancestors ever paid tribute to the ancestors of the plaintiffs, Rather, Olarogun, the plaintiffs ancestor, had settled on the piece of land in dispute with the permission of the defendants’ ancestor. Onilube, it was part of their case that Olarogun’s kith and kin had their own land at Isheri and lived there. They contended that the 1922 case, Exhibit E, was in their favour and confirmed their entitlement to the land in dispute. They also pleaded and tendered as Exhibit D another 1922 case- suit No. 32/22 of Ake Grade A Native Court, Abeokuta, in which members of the plaintiff’s family were convicted of unlawfully assaulting and wounding Falana and 3 Ors. of his family for setting fire to their huts and other property on the land.
The plaintiffs filed a reply in which they joined issues with the defendants on a number of facts in their statement of defence. Because of the prominence given to paragraphs 2, 5, 6 and 7 in this appeal, I shall set them out in full. Therein it was pleaded thus:-
“(2) As regards paragraphs 5 to 9 and paragraph 12 of the statement of defence the plaintiffs are mistaken and/or are deliberately being mischievous in their version of the plaintiffs’ relationship to the Onilube family of Isheri. The defendants are also clearly in ignorance about the land entitlement of the Onilube family. The defendants have no relationship whatsoever with the Onilube family.
(3) The plaintiffs say further that Ekibila their own great ancestor was the first Onilube (a title derived from Hube i.e. the town is in disarray) but that the family spitted into two. One moving to Gaun to found the place whilst the others went to live at Isheri.
(4) The plaintiffs say that Ekibila their great ancestor is from Ile-ife originally. He left Ile-Ife several hundreds ‘of years ago for Orile Igbehin. From Orile Igbehin he moved to Ajiran (settled at Iga Idirogbo) left Ajiran to Omoshoye and then to Wariwa. Ekibila begat Ekilodi, Osho Olarogun and Kudeko by different mothers.
(5) On the death of their father (i) Olarogun went to settle at Gaun. He became the first Agora of Gaun and had all lands stretching West from Gaun to Erunponle in Gaun District. Igodo, Okobo and Agbanigba rivers are encircled by this large area of land owned by the said Osho Agoro Olarogun. The said large area of land is bounded on one side by Bariola land of Gaun at a place called Ajege. On the other side by Ajibulu family land of Gaun at a place called Igodo-Igbo and also by Alawa family-Iands and Liadi Alimi family-land all of Gaun at places called Omidudu and Igodo Ogun respectively. The land now in dispute is right inside the said vast area of land.
(ii) Kudeko went to settle at Isheri and his line continued to take the title of the common great ancestor – the Onibule but usually with the consent of the Olarogun branch since the Olarogun branch is equally entitled to the chieftaincy title.
(iii) On the death of Ekilodi, Osho Olarogun and Kudeko (Onilube) shared their great ancestor’s land stretching from Wariwa to Isheri, Olarogun taking the Wariwa end and Kudeko (the Onilube) taking the Isheri end. The estate has nothing to do whatsoever with the land in dispute.
(iv) There is no dispute at all between the Onilube and the plaintiffs over the land now in dispute since the land in dispute is part of the separate estate of Osho Olarogun.
(a) The plaintiffs say further that the defendants have no connection at all either with Onilube family or with the Osho Olarogun family. The defendants great ancestor was one Afalu a native of Ila. He left Ila for Otta and later came to settle at Isheri as a stranger. He was a leather worker of tanner (Onigbadi) by profession. He begat Oyede, Oyede begat Fayemi and Fayemi begat Falana who in turn begat Kararu Oje the first defendant herein.
(b) The plaintiffs will at the trial of this suit rely on the annexed genealogical table marked exhibit A”
I may pause here to observe that the case now set up by the plaintiffs in the above Reply, illustrated by Exh. C, was radically different from their case as originally setup in their statement of claim. For, as I have stated, in their statement of claim they traced their roots to their great ancestor, Osho Agoro Olarogun through Abidogun. But in their Reply and Exh. C they now traced their roots to Ekibila, the first Onilube of Isheri who hailed from Ile-Ife. At a point in time, the two split into two, one moving to Gaun to found the place. It was Osho Olarogun who settled in Gaun and became the first Agaro of Gaun and had all the vast area of land stretching from West of Gaun to Erunponle in Gaun District which encircles Igodo, Okobo and Agbanigba Rivers. The land now in dispute is right inside the said vast area of land. Olarogun’s half brother, Kudeko went and settled at Isheri. Although it was averred that on the death of Ekilodi, Osho Olarogun and Kudeko shared the vast estates of their ancestor, this had nothing to do with the land in dispute which was a separate estate of Olarogun.
According to the plaintiffs’ reply, the defendants had no connection with the plaintiffs’ family or Onilube. Their great ancestor was Afalu, a tanner from Ila. Afalu begat Oyede, who begat Fayemi, who begat Falana who begat the 1st defendant.
It must be noted that a plaintiff in a reply is not entitled to depart from his case as set out in the statement of claim by setting up therein a new cause of action not raised in the writ and the statement of claim: see Williamson v. London & North Western Railway 12 Ch. D. 794. He may add some facts in his reply, but he cannot thereby set up a different case as the plaintiffs had done in this case. The proper course open to them was to have amended their statement of claim.
In his judgment the learned trial Judge held the view that paragraphs 2, 3, 5, 6 and 7 of the reply were no proper reply in law. He therefore, suo motu, struck out those paragraphs and disregarded the evidence led on them.
He pointed out that the plaintiffs in their statement of claim stated that they were claiming as “per summons”; So he had to consider the evidence on the amended writ of summons that the land was situate at Gaun and not near Gaun as in the original pleading. He preferred the traditional evidence of the defendants that their ancestor Onilube settled on land, including the land in dispute, before the plaintiff’s ancestor Olarogun. He also found that the 1922 case, Exhibit E, strengthened the defendants’ case. Importantly, he held that “Exhibits F, G and G1 showed that the Balegi family received rent from sand diggers in respect of Igodo Stream. If the Olarogun family were the owners of the land, including the river, at least, it was expected they should have sand diggers who paid rents to them, he opined. He therefore dismissed the plaintiffs’ case in its entirety.
On appeal to the Court of Appeal, Ibadan Division, that Court allowed the appeal and entered judgment. for the plaintiffs in terms of their claims. In the lead judgment of Omololu-Thomas, J.C.A. with which Uche Omo and Sulu-Gambari, JJ.C.A. concurred, he held that although the reply might have raised new issues, yet they were not such issues as could have taken the defendants by surprise, particularly as the defendants’ amended statement of defence was filed about 18 months after the filing of the said Reply. In any event, he held that the way the paragraphs of the Reply were struck out and evidence led on them disregarded let to miscarriage of justice. He further held that the learned trial Judge did not exercise his discretion judicially by disregarding the pleading in the Reply and the evidence relating thereto. He also held the view that the learned trial Judge was in error to have considered the case on the basis that the land was situate “at Gaun” when the pleading was that the land in dispute was situate near Gaun. The learned trial Judge was thereby in error to have relied on the evidence on the settlement in Gaun to resolve the issue of who settled there first. After considering Exhibit E, he came to the conclusion that if the learned trial Judge had properly appraised the evidence before him he would have held, on a balance of probability, that the plaintiffs’ case ought to have succeeded. The Court, therefore, allowed the appeal and entered judgment for the plaintiffs on their three heads of claim.
The defendants (hereinafter called the appellants) have appealed to this Court. I consider it necessary to set out the six grounds of appeal. They are:-
“1. The Learned Justices of the Court of Appeal erred in Law and misdirected themselves on the facts in allowing the Plaintiffs’ appeal against the judgment of the learned trial judge on the basis that the Defendants did not prove title to the whole area marked red in EXHIBIT ‘A’.
PARTICULARS
(a) The Learned trial judge dismissed the Plaintiffs’ claim as he was entitled to do because he was not satisfied with the quality of the evidence adduced by Plaintiffs and their witness in support of traditional history of settlement at Gaun and the land in dispute.
(b) The Learned Justices of the Court of Appeal failed to realize that it is for the Plaintiffs to succeed on the strength of their own case and not rely on any weakness of the Defendants’ case.
(c) Although the Learned Justices of the Court of Appeal conceded that the traditional evidence adduced in the case might be inconclusive, their Lordships upset the judgment of the trial court without having found evidence of recent acts of possession or ownership on the part of the Plaintiffs, numerous and positive enough to warrant the inference that the Plaintiffs’ case was the more probable.
(d) The Learned Justices of the Court of Appeal failed to realize that the ‘granting of a declaration was a discretionary power vested in the court and that the learned trial judge had ample justification in exercising the discretion the way he did by dismissing the Plaintiffs’ claim.
(ii) The learned Justices of the Court of Appeal erred in Law in allowing the Plaintiffs’ appeal against the judgment of the trial court on the basis of alleged weaknesses in the case of the Defendants when it is for the Plaintiffs to succeed on the strength of their own case.
PARTICULARS
(a) The Plaintiffs by their Writ of Summons claimed declaration of title in respect of all that piece or parcel of land known as Igado Farm but led no evidence thereon. Even the Plaintiffs’ evidence regarding settlement at Gaun was regarded by the trial court as unsatisfactory.
(b) The Plaintiffs claimed that their ancestor Olarogun settled at Gaun but the land in dispute is some distance from Gaun and the Plaintiffs did not profer satisfactory evidence of how they came to own the land in dispute.
(iii) The Learned Justices of the Court of Appeal erred in Law and misdirected themselves on the facts that the Statement of Claim had superseded the Writ of Summons.PARTICULARS
(a) The Learned Justices of the Court of Appeal ought to have upheld the decision of the learned trial judge that even though the Plaintiffs stated at paragraph 3 of the Statement of Claim that the disputed land was all that land “lying and being along Okobo and Igodo Rivers near Gaun”, the averment at paragraph 17 of the Statement of Claim that they were claiming as per the Writ of Summons had the effect of reverting to the prayer in the Writ of Summons once more namely, that the land in dispute is “Igodo Farm at Gaun”
(iv) The Learned Justices of the Court of Appeal erred in Law by substituting their own view and assessment of the evidence of the Plaintiffs and their witnesses when there was no material on the printed record to enable them to do so.
PARTICULARS
(a) It was not competent for the Learned Justices of the Court of Appeal to substitute their own assessment of witnesses for that of the learned trial judge who had the rare privilege of seeing and watching the witnesses in the witness box.
(b) The learned trial judge had held that he was not satisfied with the “evidence adduced by the Plaintiffs to prove traditional evidence that Olarogun and not Onilube was the first to settle on the land.”
(c) The learned Justices of the Court of Appeal referred to the evidence of P.W.6 and said his evidence “was not rejected nor was it properly evaluated when the learned trial judge had dismissed all the evidence of both the Plaintiffs’ and their witnesses as not qualitative enough to earn the Plaintiffs the declaration sought.
(v) The Learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts by reversing the decision of the learned trial judge to disregard paragraphs 2, 5(iii), 5(iv), 6(b) and 7 of the Plaintiffs’ reply.
PARTICULARS
(a) The learned Justices of the Court of Appeal ought to have held that the said paragraphs 2, 5(iii), 5(iv), 6(b) and 7 of the reply do not constitute a reply in law and that accordingly evidence led thereon should be ignored as going to no issue.
(b) Even if the evidence led on the offending paragraphs of the reply had been considered by the trial judge, it would not have justified a reversal of the judgment of the learned trial judge.
(vi) The judgment of the learned Justices of the Court of Appeal is against the weight of evidence.”
Arising from the above grounds, learned counsel for the appellants framed the following issues for determination:-
“2.01 The first group of issues raised by this appeal relate to the claim of the Plaintiffs to be owners of the land in dispute by original settlement:-
(i) Did the Plaintiffs prove their claim to be owners of the land in dispute by original settlement
(ii) If the Plaintiffs did not prove ownership by original settlement, could that omission be rectified by the alleged failure of the Defendants to prove ownership of a larger area including the land in dispute by original settlement
(iii) Did the Defendants in fact fail to plead or prove ownership of a larger area including the land in dispute by original settlement
(iv) Even if the Reply and the evidence led in respect thereof were properly before the court, did the same in any way establish the Plaintiffs’ traditional evidence
2.02 If the above questions are answered in favour of the Defendants, then it is submitted that they are entitled to succeed in this appeal. But in addition, or if it is held that the traditional evidence is inconclusive, the second set of issues raised by this appeal relate to the question of recent acts of possession, and are as follows:-
(i) Did the judgments produced in evidence reflect acts of ownership and possession on the part of the Plaintiffs or on the part of the Defendants
(ii) Were there any other acts of ownership and possession by the Plaintiffs
2.03 The final issue raised by this appeal concerns the Court of Appeal’s rejection of the equitable defences put up by the Defendants and is simply:-
“Did the Defendants establish the defences of laches, acquiescence and standing-by”
Learned counsel for the respondents, Mr. Adegunle, also filed and relied on his brief. The issues formulated on behalf of the respondents were not so different from those for the appellants. Both counsel adopted their briefs of argument and addressed us orally.
I believe I should first dispose of one point which arose in argument. Learned counsel for the appellants devoted a good part of his brief and addressed us, orally on equitable defences of laches, acquiescence and long possession. But learned counsel for the respondent has taken an objection to this on the ground that no ground of appeal was formulated on such equitable defences, learned counsel for the appellants obviously had no answer to this. None of the grounds of appeal set out above raised this. This Court has of course held in so many cases that issues for determination as well as argument in the appeal should be based on the grounds of appeal duly filed. Any part of a brief or argument which does not arise directly from at least one of the grounds of appeal filed is incompetent and ought to be disregarded. See on this: Osinupebi v. Saibu and Ors. (1982) 7 S.C. 104 at pages 110 and 111: also Western Steel Work and Ors. v. Iron and Steel Workers Union of Nigeria and Ors. No.2 (1987) 1 NWLR (Pt. 49) 284 on page 304. I shall therefore not consider submissions on these defences in this judgment.
I shall also make a short point on the action of the learned trial judge in striking out some paragraphs of the Reply. This is because the learned counsel for the appellants has not tried to support that action in his oral argument before us even though part of his brief purported to do so. What he has argued strenuously and which is a crucial issue for determination in this appeal is the effect which the retention of those paragraphs of the pleading and the evidence based on them would probably have had on the outcome of the case. While Chief Ajayi, S.A.N., submitted that their retention and consideration would not have produced a different result, Mr. Adegunle has submitted the contrary.
Even though the point has been conceded I still believe it is necessary to make a short remark about the conduct of the learned trial judge on the issue. There are occasions when a court may feel that a point which has not been raised by one of the parties is necessary for consideration in order to reach a correct decision in a case. In the few cases when this situation does arise it is always necessary for the judge to bring it to the notice of the parties, or their counsel as the case may be, so that they may address him on the point before he could base his decision on it. It is not competent for the judge to raise the point and decide it without hearing the parties. If he does so he will be in breach of the party’s right to fair hearing. See on this: Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at page 578; also Rex v. Hendon Justices (Ex parte Gorchein) (1973) 1 W.L.R. 1502. In this country this is a constitutional right and this Court has always insisted that on no account should a court raise a point suo motu and, no matter how clear it may appear to be, proceed to resolve it one way or the other without hearing the parties. See Lawrence Okafor and Ors. v. Felix Nnaife and Ors. (1972) 3 E.C.S.L.R. 261; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566, at page 581. So the learned trial judge was in error to have raised the point, resolved it, and proceed to strike out part of the Reply without hearing any of the parties.
That is not all. But the main thrust of the argument of Chief Ajayi is that the striking out of the Reply and disregarding the evidence called on it, though an error, did not affect the justice of the case. So the Court of Appeal over-reacted to the situation by entering judgment for the respondents on that score.
This is so because although the part of the Reply struck out pleaded the family tree, exhibit ‘C’, and tried to show that Onilube had a connection with the respondents’ family and not with the appellants’, this point would have come to nothing if it was considered because the respondents are not claiming the land in dispute through Onilube. Instead, their case is that they were claiming through Olarogun who acquired the land in dispute as a separate venture. In answer, learned counsel for the respondents submitted that a consideration and acceptance of that part of the pleading, exhibit ‘C’. and other evidence based on it would have shown that the appellants’ claim through Onilube was baseless.
I have set out above the relevant portions of the reply, it appears to me that Chief Ajayi is right. For the gist of the pleading in the part of the Reply struck out goes to show that the respondents had a genealogical connection with one Onilube. Even if that was considered and accepted, it could not have advanced the case of the respondents in so far as they are not laying claim to the land in dispute through Onilube.
Rather their case is that they claim through Olarogun. Even if that could have been said have weakened the appellants’ case, it would still not have relieved the respondents of the onus of proof to them. For it has been established by numerous cases starting with Kodilinye v. Odu (1935) 2 WACA336 that, except that a plaintiff may take advantage of any part of a defendants’ case which supports the plaintiffs’, in a claim for a declaration of title such as this the plaintiff must succeed on the strength of his own case and not on the weakness of the defence’s case. See further on this:
Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370.
Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208.
Akpakpuna v. Nzeka (1983) 2 S.C.N.L.R. 1.
Onubruchere v. Esegine. (1986) 1 N.W.L.R. (Pt.75) 799, and numerous other cases. In this case, the respondents, as plaintiffs, claim to have derived title from their great ancestor, Olarogun, who acquired a large track of land which included the land in dispute as a separate enterprise. They themselves were emphatic that Olarogun’s land in Gaun was not part of the family estate. The part of the Reply struck out was designed, not to establish their entitlement to the land which included the land in dispute which they claim through Olarogun. Rather, it was to show that the Onilube whom the appellants claim to be their ancestor and through whom they claim was, in fact, at a certain point in time, a member of the respondents’ family. So if considered and accepted, it would have weakened the appellants’ case without advancing the respondents.
It follows therefore that if the part of the Reply wrongly struck out were considered, even if it was established in favour of the respondents, it could have had nothing to do with the respondents’ duty to discharge their onus of proof on the strength of their own case. Its acceptance would have at best weakened the appellants’ case, in as far as they claimed that Onilube was their ancestor’ through whom they claimed, without advancing the respondents’. The learned trial Judge particularly noted this fact in his judgment. Restating the principle in O.K.O. Mogaji & Ors. v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393, this Court, per Obaseki, J.S.C. stated at pp. 429-430:
“It is the duty of the party who seeks a declaration of title to land to establish and prove his claim by credible evidence or as put by Webber, C.J. Sierra Leone, and concurred in by Kindgon, C.J. Nigeria and Butter-Lloyd, J. in the celebrated case of Kodilinye v. Mhanefo Odu (1935) 2 WACA 336-337:-
‘The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case.’
The defendants’ case may itself support the plaintiffs’ case and contain evidence on which the plaintiff is entitled to rely. In such a case, provided the evidence is credible and accepted by the judge during the assessment of the evidence adduced, the plaintiffs are entitled to the evaluation of such evidence in their favour so as to increase the strength of their case (per Unsworth, F.J. in Akintola & Ors. v. Oluwo & Ors.(1962) All N.L.R. 224 at 227; (1962) 1 SCNLR 352.”
Even if the point were considered and accepted, there is nothing in it to support the case of the respondents. I must, therefore, agree with Chief Ajayi that striking it out the Reply and expunging the evidence thereon, erroneous as it was in principle, has not occasioned a miscarriage of justice. It is, of course settled, that it is not every mistake or error in a judgment that will result in the appeal being allowed. It is only when it is substantial in that it has occasioned a miscarriage of justice that the appellate court is bound to interfere. See:
Onajobi v. Olanipekun (1985) 4 S.C. (Pt.2) 156, p. 163.
Gwonto v. The State (1983) 1 S.C.N.L.R. 142, pp.152-153.
This brings me to the question: did the respondents prove that they settled on the land in dispute before the appellants The learned trial Judge held that they did not. He adverted to the evidence of the respondents that when Olarogun came to Gaun, he met a well-organised community with a Bale of its own who even honoured him with a chieftaincy title. He, therefore, concluded that on that concession, he could not be said to be the first settler because the land at Gaun must have been settled upon by Bale and the community before Olarogun came. But the learned Justices of the Court of Appeal held that the learned trial Judge was in error to have used the evidence of the settlement at Gaun to resolve the conflicting evidence of tradition. This, according to them, is because according to the respondents’ statement of claim, the land was situate near Gaun. It was therefore wrong to have used evidence of settlement in Gaun to resolve the issue.
With respects, I believe that their Lordships of the Court of Appeal missed the point as to where, on the case presented by the respondents the land in dispute was situate: whether in Gaun or near Gaun. This is because the factual situation is as follows:
(i) The original writ of summons as dated on 21st September, 1976 claimed title to “all that piece or parcel of land known as Igodo Farm at Gaun in Ogun State.”
(ii) Although paragraph 3 of the statement of claim dated the 8th day of February, 1977, stated that the land in dispute was situate near Gaun, paragraph 27 states that “the plaintiffs claim as per their Writ of Summons.” This re-affirmed the fact that they claimed that the land was in Gaun.
(iii) Paragraph 1 of the amended indorsement to the writ of Summons at page 32 of the record, repeals the averment that the land is “Igodo Farm at Gaun in Ogun State.”
So, when the respondents pleaded that they claim “as per their Writ of Summons” it follows that their case is that the land is situate at Gaun not near Gaun. The learned Justices of the Court of Appeal were therefore in error when they held:
“From the foregoing, if I may pause here, one wonders why the learned trial Judge should confine his finding to settlement at Gaun when the area particularly in dispute is not at Gaun but the small portion of land right in the middle of a vast area of land referred to as being near Gaun in paragraph 3 and 4 of the statement of claim.”
One may still argue that even though the claim was over land at Gaun, it was not the whole of Gaun that was in dispute. So, it might still be possible for a person to prove title over a small piece of land in or near a town. But then, in this case the learned trial Judge on the evidence before him found as follows:
“The Writ of Summons claims all the piece or parcel of land known at Igodo Fann at Gaun. Throughout the evidence of the parties, there is no evidence that the land in dispute is Igodo Farm. There is also no evidence that the portion of land edged green on exhibit A, the only farm that could be inferred within the area verged green in Ogodo Farm. An examination of the same plan, exhibit A, does not show Igobo river within the area verged green. There is an indication that a river discharging into Ogobo river flows from (FOM) Igobo river.”
There is not appeal against this important finding of fact. Therefore, the learned trial Judge also found there was no proof in support of respondents’ claim of ownership of Igodo Farm, whether it is in or near Gaun. As pointed out by the learned counsel for the appellants, it is striking that there was not a shred of evidence in support of the contention that what Olarogun settled upon was a piece of land near Gaun. Rather evidence from respondents witnesses show that the land in dispute was situate at Gaun. P.W.1 testified as follows:
“I know the land in dispute. lt belongs to the family of Olarogun. The land in dispute is at Gaun Town.”
In the face of the pleadings, this, and other similar evidence on record, it appears that the learned trial Judge was right to have used the settlement at Gaun to resolve the conflicting evidence of tradition. The court below was in error to have held the contrary.
Chief Ajayi further submitted that as the respondents failed to prove that Olarogun through whom they claim was the original settler of the land in dispute, they had failed to prove their title even before the appellants case notwithstanding. Learned counsel for the respondents put the issue more pointedly: did the respondents, as plaintiffs, prove their case It was, of course, open to them to resort to other methods of proving their title to the land – apart from evidence of tradition:
and there are five alternative ways of doing so. See on this-
Idundun and Ors. v. Okumagba (1976) 9-10 S.C. 241.
Piaro v. Tenalo (1976) 12 S.C. 31 al page 37
Indeed from the respondents’ pleadings in paragraphs 9, 10, 12, 13, 14, 15,16, 18, 19 and 20 of the statement of claim it appears that it was also their case not only that they had been in possession of the land for over 200 years, but also that their acts of possession and ownership have also been so numerous and positive and had been for so long that the court should conclude that they were the exclusive owners:
Ekpo v. Ita (1932) 11 N.L.R. 68.
One may therefore ask what the two courts below found as to act of possession and ownership. Unfortunately the court below appeared to have concentrated on whose ancestor settled, on the land which includes the land in dispute first and how Oyede, one of appellants’ ancestors came to fish in the river. Apart from considering the 1922 case, Exhibit E, which they held was favourable
to the respondents, they scarcely considered other acts of possession and ownership as pleaded and testified to in evidence. Next their Lordships held that if the learned trial Judge had properly-appraised the evidence, he would have found on a balance of probability that the respondents ought to have succeeded and proceeded to enter judgment for them. Significantly their Lordships said nothing specifically about the findings made by the learned trial Judge on the evidence before him. For first, on the conflicting claims as to which party, the appellants or respondents, installed rent-paying tenants on the river flowing through the land in dispute and have been collecting rents from them, the learned trial Judge found as follows:
“Exhibits F, G and G1 show that the Balegie family (i.e. one of the appellants) receive rents in respect of lgobo Stream. If the Olarogun family is the owner of the land, including the river, at least, I expect they should have sand diggers who will pay rents to them.”
This has not been challenged or impugned in any way.
Secondly: on the 1922 Native Court suit, Exhibit E, it is clear at least that while the appellants were claiming the stream through their ancestor, Falana the respondents did not assert any interest of theirs. The issue was whether Falana had granted the stream to Gaun town for fishing purposes, the townspeople having enjoyed fishing in it for 40 years. The evidence given in that case shows clearly that Falana owned the stream but gave it to the townspeople for their own use.
These would justify the finding of the learned trial Judge that the fishing right over the river was granted by Falana’s father to Gaun community.
Thirdly: Exhibit D, another 1922 Native Court suit in which some member of respondents’ family were convicted for setting fire to some huts in the area in dispute and for assault on Falana show quite clearly that it was the appellants’ family whose claims over the stream and fishing rights thereon had been upheld.
Fourthly: The evidence of D.W.3 shows that he had been farming on part of the land in dispute for 50 years, as a tenant of the appellants, until he could no longer farm as a result of old age.
Fifthly: The evidence of D.W.4 shows that he had been a rent-paying tenant of the appellants for at least six years before the action was brought.
Against these, learned counsel for the respondents in paragraph 5.15 of his brief has listed five pieces of evidence of acts of ownership and possession as given on behalf of the respondents. Unfortunately he could not point at even one which has been believed by any of the two lower courts. From these’, I must infer that even on acts of ownership, the respondents did not prove their case. The findings by the learned trial Judge on these acts within living memory in favour of the appellants would have entitled the Judge, quite apart from his conclusion on the settlement in Gaun, to find in favour of the appellants on the conflicting evidence of tradition as between the parties. See on this:
F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215, p. 228
Olujebu of Ijebu v. Eso, the Eleda of Eda (1972) 5 S.C. 143, P. 151
For it is settled that where parties to a land suit base their cases on evidence of tradition, and such evidcnce as called by the parties conflicts, the best way to decide which of the conflicting version is the more probable is to find out which of the parties has established act of possession with living memory. In this case, from that I have shown above, the learned trial judge would have rightly resolved the conflict in favour of the appellants.
In this case, it does appear to me not only that the respondents, as plaintiffs failed to prove the title which they claimed either by their evidence of tradition or by acts of possession and ownership, but also that, on the other hand, the appellants proved their case whether it is looked upon from the evidence of tradition, or acts of possession and ownership, or both. Indeed, looking at the whole case it does appear to me that what the court below did was to find that the learned trial Judge was wrong to have suo motu raised and struck out part of the respondents’ Reply and, without giving due consideration to the onus on the respondents to prove their case on the strength of their own case, proceeded to enter judgment for them in terms of their claim. Learned Senior Advocate for the appellants has said that the Court of Appeal over-reacted to the situation. He appears to me to be right. For, in my respectful opinion, the fact that a particular point of error on the part of the learned trial Judge had been detected is one thing. But that, taking that point into account, the respondents had discharged the onus of proof on them is quite another. Being a case of declaration of title to land, it behoved the court below to consider if, taking the wrongly disregarded evidence into account, the respondents proved their case. I have shown that on that approach they did not. All that their Lordships did was to hold that:
“If the trial Judge had properly appraised all the evidence before him he would have considered and held that on the balance of probability (the preponderant evidence being on the side of the plaintiffs) appellants’ case ought to have succeeded,”
They did not specify. Apart from what they said about the evidence of settlement and Exhibit E. which I have shown were misdirected, they did not show what facts there were to sustain their conclusion. Considering the nature of the onus on the respondents in a case of declaration of title, that was not enough they should have gone further to find whether the plaintiffs/respondents discharged the onus on them.
For all I have stated above, this appeal succeeds, and is allowed. I set aside the judgment of the Court of Appeal and all the orders made thereon. I restore the judgment of the High Court, together with the order for costs made by the learned trial Judge; and dismiss the plaintiffs’ case in its entirely. I assess costs in favour of the defendants at N350.00 in the Court of Appeal and N500.00 in this Court.
M. BELLO, C.J.N.: I have had the advantage of reading in advance the judgment delivered by my learned brother, Nnaemeka-Agu, J.S.C. For the reasons he has stated therein, I agree that the appeal should be allowed, the judgment of the Court of Appeal be set aside and the judgment of the High Court be restored. I endorse the order as to costs.
S. KAWU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother. Nnaemeka-Agu. J.S.C. which has just been delivered. I am in complete agreement with his reasoning and also with his conclusion that the appeal ought to be allowed. I am satisfied that on the pleadings before the trial court the respondents herein as plaintiffs, were unable to prove their claim and that the trial Judge was right in dismissing their case. I will accordingly allow the appeal, set aside the judgment of the Court of Appeal and restore that of the trial High Court dismissing the plaintiffs’ claim in its entirety. I abide by the order of costs made by my learned brother, Nnaemeka-Agu. J.S.C. in the lead judgment.
A. B. WALI, J.S.C.: I have had the privilege of reading in advance, a copy of the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. I agree with his reasoning and the conclusions which I also hereby adopt as mine.
For those same reasons in the lead judgment of my learned brother Nnaemeka-Agu, J.S.C. I hereby allow this appeal. The judgment and orders of the Court of Appeal are set aside and in place thereof the judgment of the trial court is restored. I abide by the orders as to costs made ill the lead judgment.
O. OLATAWURA, J.S.C.: I had a preview of the judgment of my learned brother, Nnaemeka-Agu. J.S.C. I agree with his reasoning and conclusions. I have nothing to add. I will also allow the appeal. The judgment of Delano. J. (as he then was) dated 13th July, 1982 is hereby restored. Costs in the lower Court are assessed at N350.00 and costs in this court are assessed at N500.00 in favour of the Appellants.
Appealed allowed
SC.135/1987
