Chief Samusideen Afolabi Ayorinde & Ors V. Chief Hassan Sogunro & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The respondents as Plaintiffs sued the appellants (defendants) on a writ of summons and statement of claim for:

1. A declaration that the plaintiffs are the persons entitled to customary right of occupancy in respect of the vast area of land situate lying and being of and around Idi Orogbo area, Ikija village in Ogun State of Nigeria.
2. A declaration that the 1st, 2nd and 3rd defendants are customary tenants of the plaintiffs.
3. Recovery of possession of the vast area of land situate, lying and being at and around Idi Orogbo area, Ikija village in Ogun State of Nigeria held under customary tenure in that the defendants committed acts inconsistent with and in defiance of the plaintiffs, refusing to pay annual rent/tribute and selling and leasing the said land.
4. Declaration that all sole or leases or purported sales or leases allegedly made by the defendants were null and void.
5. Perpetual Injunction restraining the defendants from further selling or leasing the said land. The annual rental value is N500.00

The case was tried on pleadings. In their statement of claim the plaintiffs traced their traditional history of the land in dispute, to IBARAGUN the founder of the Ibaragun land. The defendants traced their traditional history to KUNRUNMI; seven witnesses were called by the plaintiffs, while the defendants called five witnesses. In all six documents were admitted in evidence as exhibits, Trial commenced on the 28th day of March 1994 and was concluded on the 7th of December, 1994, Judgment of the High Court (trial court) was delivered on the 23rd day of February, 1995. In that judgment the learned trial judge found:

“That the ancestor of the Plaintiffs was Ibaragun while the ancestor and leader of the defendants was Kunrunmi, and that Kunrunmi paid Isakole as customary tenant to the Ibaraguns”

His lordship concluded that the plaintiffs are entitled to a customary right of occupancy, and granted all the plaintiff claims.

The defendants lodged an appeal. It was heard of the Court of Appeal, Ibadan Division. That court affirmed the judgment of the trial court and dismissed the appeal with N5, 000 costs against the defendants/appellants. This appeal is against that judgment.

In accordance with well settled Rules of appellate practice briefs were filed and exchanged. The appellants brief was deemed filed on 26/3/09, while the respondents brief was deemed filed on 4/12/09. An appellant’s reply brief was deemed filed on 9/2/11.

Learned counsel for the appellants’ formulated five issues for determination. They are:

1. Whether the evidence, Exhibit E and F admitted by the trial court with the consent of both parties and before the two lower courts was not a proceeding and, or judgment before the two lower courts, irrelevant and inadmissible within the purview of Section 34, sub-section (1) of the Evidence Act, Cap E 14, volume 6, Laws of the Federation, 2004 and was rightly excluded in the determination of the herein matter by the two lower courts.
2. Whether the lower court (Court of Appeal, Ibadan Judicial Division) was right to have held that the trial judge, Bakre, J observed, applied and relied on the Rule in Kojo II v. Bonsie 1957 1 WLR p. 1223 of 1226 in the determination of the herein action and, or finding for the plaintiffs, now respondents.
3. Whether in view of the available evidence on Record from both parties, the Rule and, or principle in Kojo II v. Bonsie 1957 1 WLR p.1223 at 1226 applies to the instant matter and ought to have been observed, applied and relied upon in the determination of this action by the two lower courts.
4. Whether the trial court had properly evaluated the evidence of the parties and their witnesses in the herein matter as to have precluded the lower court (Court of Appeal, Ibadan Judicial Division) from disturbing the findings and judgment of the trial court.
5. Whether the lower court was right to have held or confirmed that there had been no perversion or miscarriage of justice in the findings, conclusion and judgment of the trial judge.

Learned counsel for the respondents formulated two issues. They are:

1. Whether evidence of a deceased in a previous case, the judgment of which was later set aside on appeal, and a new trial held without the witness being called, is still relevant in the later proceedings under section 34 of the Evidence Act, and if so, to what extent.
2. Whether the plaintiff/respondents tendered evidence of such quality and quantity which entitled them to the reliefs sought.

I have examined the issues formulated by both sides.

I shall consider the issues formulated by the appellants’ in resolving this appeal as they appear to portray their real grievance.

At the hearing of the appeal on the 14th of February 2012 learned counsel for the appellants’, Dr. F. Jolaosho adopted the appellant brief deemed filed on 26/3/09 and reply brief deemed filed on 9/2/11 and urged this court to allow the appeal, Chief (Dr.) V.A. Odunaiya adopted the respondents’ brief deemed filed on 14/12/9 and urged this court to dismiss the appeal.

The findings of the learned trial judge are as follows:

1. Ibaragun founded Ibaragun land which included the land in dispute,
2. Ibaragun gave land to people around to settle which settlement later become the villages which included the area known as Ikija and now in dispute.
3. The people settled were all regarded as customary tenants and they paid tribute (Ishakole).
4. The ancestors of the plaintiffs/respondents was Ibaragun while the ancestor of the defendants/appellants was Kunrunmi and that Kunrunmi paid Ishakole as customary tenant to the Ibaraguns.
5. The relationship of overlord and customary tenants descended upon the descendants of Ibaragun and Kunrunmi respectively.
6. The claim for forfeiture succeeds and order of forfeiture is accordingly granted.
7. Since the defendants had no title, all sales, leases of purported sales or leases were null and void, and
8. The defendants are perpetually restrained from further selling or leasing the said land.

The Court of Appeal agreed with all these findings and dismissed the appeal, I shall now consider the issues for determination of this appeal. (i.e. the issues formulated by the appellants).

ISSUES 1

Learned counsel for the appellants’ observed that the learned trial judge was wrong not to have considered Exhibits E and F under section 34(1) of the Evidence Act, Contending that the exclusion of both exhibits occasioned a miscarriage of justice. Reliance was placed on

Ikenye v. Ofune 1985 16 NSCC pt. 1 p. 379

Ayinde v. Salawu 1989 2 NWLR pt. 109 p. 297

He urged this court to resolve this issue in favour of the appellants.

Learned counsel for the respondents’ observed that since the proceedings in Exhibit E were set aside by the judgment in Exhibit F, Exhibit E is no longer relevant for any purpose whatsoever. Reliance was placed on

Shofoluwe v. R. 1951 13 WACA p. 264

Alade v. Borishade 1960 5 FSC 167/168.

The live point in issue 1 is that had the learned trial judge invoked section 34 (1) of the Evidence Act and relied on Exhibit E and F there would not have been a miscarriage of justice to the appellants.

Section 34 (1) of the Evidence Act states that:

“Evidence given by a witness in a Judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent Judicial proceeding, or in a later stage of the same Judicial proceeding the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable.

This section allows a court to make use of evidence of previous proceedings where the maker is dead, cannot be found, or is incapable of giving evidence in a case where the questions in issue are substantially the same in the previous proceedings as in the present proceedings. Before this can be done the facts must be pleaded. This subsection is also applicable where the judgment relied on has been set aside on appeal and even where a retrial is ordered. If on the contrary the judgment relied on was held to be a nullity for lack of jurisdiction such a judgment cannot be relied on under section 34(1)(c) of the Evidence Act. See

Sanyaolu v. Coker 1983 14 NSCC p.119

Afribank Nig PLC v. Shanu 1997 7 NWLR pt.514 p.601

Exhibit E is suit No.88/CV/69. It was heard in a Customary Court. His Highness Oba Samuel Adesina Gbadebo (deceased) gave evidence on the issue in his case. The customary court gave judgment against the defendant. That court said:

“In the light of this decision…I shall not grant the plaintiffs claim for forfeiture and recovery of possession but I shall allow the defendant to be in occupation provided the ownership of the plaintiffs is recognized that is by making order for the continuing the annual tribute of 4 tins of palm-oil.”

An appeal was lodged in the High Court. The appeal is Exhibit F, Suit No. AB/14A/73. The High Court said:

“The judgment of the learned president including the order as to costs is hereby set aside. As it is none of my business sitting as an appellate court to make findings of fact and I have none before me upon which I can enter a judgment in favour of the appellant, I must send the case back for retrial before the Egba Divisional Grade ‘A’ Customary Court which happily is now presided over by a new President.”

Exhibit F is the appeal against Exhibit E, Exhibit F set aside Exhibit E, Notwithstanding that Exhibit E was set aside by Exhibit F, the learned trial judge could still rely on testimony in Exhibit E by virtue of the provisions of Section 34 of the Evidence Act. The question is whether the testimony of His Highness Oba Samuel Adesina Gbadebo in Exhibit E not relied on by the learned trial judge makes any difference.

In evidence in Chief, Oba S.A. Gbadebo said:

“…Ibaragun Community owns the land in dispute…”

In cross examination he said:

“…I cannot tell whether the Ikija villagers pay tribute to Ibaraguns on the land.

Evidence in Chief is an opportunity for the plaintiff and his witnesses to state their case on oath.

Cross-examination is to test the credibility of testimony given in Evidence in Chief, while Re-examination is on opportunity for the witness to restore credibility to his testimony; Ikija villages are within Ibaragun land, the land in dispute. The testimony of the witness in cross examination is the truth as perceived by him. It is inconclusive as to whether the Ikija villagers pay tribute to the Ibaraguns on the land in dispute. There was no miscarriage of justice by the trial court not relying on Exhibit E. The judgment of the trial court, confirmed by the Court of Appeal is correct notwithstanding the fact that Exhibits E and F were not referred to by the learned trial judge.

ISSUES 2 & 3

Learned counsel for the appellants observed that the Court of Appeal held that the trial judge applied the Rule in Kojo II v. Bonsie 1957 1 WLR p. 1223 contending that nowhere in the judgment of the trial court is this so, Reference was made to pages 135 and 137 of the judgment of the Court of Appeal, Learned counsel argued that both sides relied on traditional history, and evidence led was conflicting, contending that the trial court ought to have applied the Rule in Kojo II v. Bonsie supra

Are v. Ipaye 1990 3SC pt. 11 p. 108

Iriri v. Erhurhobara 1991 3 SC p. 1.

He submitted that facts in recent years before the judgment of the trial court ought to have been the guiding consideration which the courts below would have found the evidence given of traditional history by the appellants more probable. He urged this court to reverse the judgment of the courts below.

Learned counsel for the respondents observed that the Court of Appeal showed a deep consideration of the traditional history of both parties the acts of recent possession of the plaintiffs and employed the rule in Kojo II v. Bonise supra.

He submitted that this court is urged to hold that the learned trial judge took the proper approach as suggested in the case of Kojo II v. Bonise supra in that the trial court considered the evidence adduced on both sides of acts of ownership in recent year before concluding that plaintiffs/respondent traditional history was more probable.

The issues have two sides.

1. Whether the trial judge applied the Rule in Kojo II v. Bonsie 1957 1 WLR p. 1223.
2. Whether the Rule in Kojo II v. Bonsie (supra) should be applied in this case.

Ownership of land may be proved in any of the following five ways:

1. by the traditional evidence;
2. by production of documents of title which are duly authenticated;
3. by acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it;
4. by acts of long possession and enjoyment of the land; and
5. by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. See

Idundun v. Okumagba 1976 9 – 10 SC p. 227

Piaro v. Tenalo 1976 12 SC p. 31

Omoregie v. Idugemwanye 1985 2 NWLR Pt. 5 p. 41.

In this case the respondents as plaintiff’s relied on traditional evidence, while the appellant as defendants also relied on traditional evidence. The plaintiffs traced their genealogy to Ibaragun the founder of Ibaragun land. The defendants/appellants traced their genealogy to Kunrunmi the founder of Ikija, which is included in the area now in dispute.

The onus is on the plaintiff to establish his title to land and this he does by proving acts of ownership extending over a sufficient length of time. He relies on the strength of his case and not on the weakness of the adverse party’s case.

It is only where evidence of traditional history is inconclusive to establish plaintiff’s title that traditional history must be tested by reference to the facts in recent years as established by evidence.

In the case of Kojo II v. Bonsie & Anor 1957 1 WLR p.1223 the Privy Council explained the position in these words:

“The dispute was all as to the traditional history which had been handed down by word of month from their forefathers. In this regard it must be recognized that, in the course of transmission from generation to generation mistakes may occur without any dishonest motives whatever, witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.”

This is the Rule in Kojo II v. Bonsie Supra, and it has been followed repeatedly in our courts. See

Ekpo v. Ita II NLR p. 68

Okiji v. Adejobi 1960 5 FSC p. 44

Jegede v. Gbajumo 1974 10 SC p. 183

After a detailed review of evidence the learned trial judge found, rightly in my view that the fathers of the appellants paid Isakole (tribute) to the Ibaraguns as their customary tenants. The evidence of witnesses called by the appellants was rightly rejected by the learned trial judge for good and sufficient reason. In view of the compelling and conclusive evidence led by the respondents there was no need to rely on the Rule in Kojo II v. Bonsie & Anor supra since traditional evidence was not inconclusive. Who owns the land in dispute was easily resolved by the learned trial judge.

On whether the learned trial judge applied the Rule in Kojo II v. Bonsie & Anor supra, this is what that court had to say:

…In my view, the traditional history of the Ibaraguns is conclusive and acceptable. I accept it as against the inconclusive and unreliable story narrated by the defendants, In Iriri v. Erhubobara 1991 2 NWLR pt. 173 p.252 it was said that where the traditional history is inconclusive the learned trial judge is estopped to accept one side of evidence against the other conflicting side of evidence. If the evidence of traditional history is conclusive a trial judge is entitled to accept it as against evidence of traditional history which is in conflict and it is not supported by evidence of recent acts of possession.

The above shows clearly that the learned trial judge accepted the traditional history of the respondents, as conclusive and accepted it. The judge had no need to apply the Rule, Reference by the Court of Appeal to the Rule was unnecessary as the facts and circumstances of this case are clear, I am satisfied also that reference by the Court of Appeal to the Rule in Kojo II v. Bonsie & Anor supra has not led to a miscarriage of justice since the case was resolved on sound evidence.

ISSUES 4 AND 5

Learned counsel for the appellants submitted that the learned trial judge failed to properly evaluate the evidence of both parties and this resulted in erroneous and wrong finding for the respondents, and the Court of Appeal failed to interfere with the said findings. He urged this court to allow the appeal.

Learned counsel for the respondents observed that the courts below showed deep consideration of the traditional history of both parties and came to the correct finding. He further observed that there is no evidence of perversion or miscarriage of justice. He urged this court to dismiss the appeal.

Evaluation of evidence comes in to forms.

(a) Findings of fact based on the credibility of witnesses, and

(b) Findings based on evaluation of evidence.

In (a) an appeal court should be slow to differ from the trial judge. Afterall it was he that saw and heard the witnesses, he watched their demeanour and so his conclusions must be accorded some respect. But in (b) an appeal court is in as good a position as the trial court to evaluate the evidence. In both (a) and (b) the conclusion of the trial judge should be accorded much weight except found to be perverse.

Trial courts receive evidence. That is perception. It is then the duty of the court to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Ikija land falls within the land in dispute. The identity of the land is not in issue, PW 2, 3, and 4 are Ikija people. They admitted that their fathers paid Isakole (tribute) to the Ibaraguns (respondents). They further admitted that they (Ikija people) are customary tenants of the Ibaraguns.

Proof in Civil cases is on preponderance of evidence. That means one sides position outweighs the other. In civil matters the onus of proof shifts from the plaintiff to the defendant and vice versa. The onus always rests on the party who would fail if no evidence is adduced on either side. Evidence led by the respondents is of such high quality that the learned trial judge was right to reject evidence led by the appellants and grant the respondent their reliefs. The Court of Appeal was correct to confirm the judgment of the trial court. Evaluation of Evidence by the learned trial judge was flawless.

Miscarriage of justice occurs when the court fails to do justice. See

Nnajiofor v. Ukonu 1986 4 NWLR pt.36 p.505

Amadi v. NNPC 2000 10 NWLR pt.674 p.76

There was no miscarriage of justice since it is so obvious that Rules of procedure were strictly followed, and standard of proof attained to the satisfaction of the courts below and this court. The judgment of the learned trial judge was based on well examined and accepted evidence.

This is a case of concurrent findings by the courts below. This court rarely disturbs concurrent findings of fact but would not hesitate to set aside such findings if satisfied that there are exceptional circumstances, such as the findings are perverse, or unsupportable by evidence, or there has been a miscarriage of justice. See

Iroegbu v. Okwordu 1990 6 NWLR pt. 159 p. 643

Balogun v. Adejobi 1995 2 NWLR pt.376 p. 131

The findings by the learned trial judge, confirmed by the Court of Appeal that the respondents are the owners of the land in dispute and the appellants are the customary tenants of the respondents are not perverse. They were findings based on compelling and conclusive evidence.

This appeal is dismissed with costs of N50, 000, 00 to the respondents.

---

SC.12/2006