Femi Amoloja & Ors V. Ife Co-operative Produce Marketing Union Limited (2016)
LawGlobal-Hub Lead Judgment Report
JAMES SHEHU ABIRIYI, J.C.A.
This appeal is against the judgment delivered on 5th June, 2012 in the High Court of Osun State holden at Ile-Ife.
The Respondent was the Plaintiff in the Lower Court. The Appellants were the, Defendants.
The claim of the Respondent at the lower Court was for the following:
1. A declaration that the claimant is the owner in possession of the piece or parcel of land, lying, situate and being Elutunde Famuyiwa Ishola Akiti Family land at Iwara land along Itamarun Road, Ile-Ife, the Central Local Government now Ife East Local Government covered by a Certificate of Statutory Rights of Occupancy dated 30-9-1994 No. 33 Page 33 volume 42 of the Lands Registry Osogbo.
2. N8000,000.00 General damages against the defendants for trespass committed on or about 26th May 2007 by the defendants on the land situated, lying and being Elutunde Famuyiwa Ishola Akiti family’s land at Iwara Land along Itamarun Road Ile-Ife, Ife Central Local Government now Ife East Local Government which is in possession and control of the claimant and covered by a Certificate of
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Statutory Right of Occupancy dated 30-9-1994 No. 33 Page 33 Volume 42 of the Lands Registry Office, Osogbo,
3. A Perpetual injunction restraining the 1st, 2nd 3rd and 4th defendants their servants, agents and privies from interfering with or disturbing the Claimant’s possession or/and control of the land in dispute in any manner inconsistent with the claimant’s possession or/control of the land in dispute.
The facts of the case are simple and short. From the evidence of the four witnesses called by the Respondent at the lower Court, the father of the 3rd and 4th Appellants agreed with the children to sell part of his large expanse of land in order to meet a financial need then in respect of one of the children Rotimi who had need to set up a shop to practice the trade he had just learnt.
The Respondent was among those to whom the land was advertised.
The Respondent purchased the land after inspection by its agents and a lawyer drafted an agreement of sale. The Respondent later obtained a Certificate of Occupancy for the land it purchased.
However, on 26th May 2007 when PW2 and PW3 went to the land they found the 2nd and 3rd
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Appellants allocating it to an unknown person.
When the 2nd and 3rd Appellants were challenged, they claimed to be doing that on behalf of other Appellants.
The defence of the Appellants was that the land is ancestral land belonging the children, grand children and great grand children of Akiti. The land has not yet been partitioned. The land at no time became the exclusive property of their father. The 4th Appellant and three others signed the agreement as minors. Therefore the agreement is null and void.
After hearing evidence and addresses of learned counsel for the parties, the lower Court entered judgment in favour of the Respondent.
The Appellants were dissatisfied and appealed to this Court. They filed an initial notice of appeal dated 15th June, 2012 but filed on 18th June 2012 containing three grounds of appeal. With leave of this Court, the Appellants filed an additional ground of appeal. From the grounds of appeal the Appellants presented the following two issues for determination:
(A) WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE GIVEN BY THE CLAIMANT’S WITNESSES AND THEREBY CAME TO CONCLUSIONS THAT
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WERE JUSTIFIED BY THE EVIDENCE AND PLEADINGS, PARTICULARLY THE CLAIM OF THE CLAIMANT.
(B) WHETHER FAMUYIWA BRANCH OF AKITI FAMILY WHO IS THE ANCESTOR OF THE APPELLANTS CAN ALONE SELL THE FAMILY PROPERTY WITHOUT THE CONSENT OF OTHER BRANCHES WHEN THERE IS NO EVIDENCE THAT THE LAND IN DISPUTE HAS BEEN PARTITIONED.
Respondent did not indicate any preliminary objection to any ground/issue for determination but argued at length on the competence of grounds/issue one and two and alternatively both issues were contested on the merit.
On issue 1, learned counsel for the Appellants submitted that the burden of proof of title to land is on the party who asserts or claims title and therefore a plaintiff will succeed on the strength of his own case and not on the weakness of the case of the defendant. We were referred to several authorities including: Ufomba & Anor v. Ahuchaogu & Ors (2003) 6 SCM 189 at 193, Akinduro v. Alaya (2007) 12 SCM (Pt. 2) 122 and Idundun v. Okumagba (2002) 20 WRN 127. There are five ways of proving title to land, it was further submitted, and it is sufficient if title is proved by one only of the five ways.
In
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the instant case, the Respondent it was argued was claiming title by a document of title which paved the way for the issuance of a Certificate of Occupancy.
The Respondent, it was contended called four witnesses even though only one written statement on oath was attached to the 2nd amended statement of claim. The written statements on oath of the other witnesses accompanying the earlier statements of claim should be deemed abandoned, it was submitted. The lower Court, it was pointed out, went ahead to act on the evidence of PW1, PW2 and PW3 even though their statements on oath did not accompany the 2nd amended written statement of claim. That the lower Court even admitted Exhibit P1 even though an objection was raised by Appellant’s counsel to its admissibility.
The abandoned written statements on oath of PW1, PW2 and PW3, it was further submitted did not contain the reliefs sought by the respondent. Therefore the claims went to no issue. We were referred to Cameroon Airlines v. Otutuizu (2011) 1 SCM 70 at 77 and Odunze & Ors v. Nwosu (2007) 11 SCM 88 at 94.
The Respondent, learned counsel for the Appellants maintained, relied on a
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sale of land agreement in the pleadings to support its claim to the land in dispute but failed to tender the document in question. This, it was submitted, amounted to withholding evidence.
On issue 2, it was submitted that the land in dispute is jointly owned by three branches of Akiti family consisting of Famuyiwa, Elubintan and Elumole. Therefore being family land that has not been partitioned a valid sale of such land will require the grant or transfer to be made by the head of the family with the principal members concurring. This means that in this case the head of each of the three branches of Akiti family.
The tendering of the sale agreement, it was argued, would have guided the lower Court in coming to a decision as to the genuineness of the alleged sale.
It was submitted that the tendering of the certificate of occupancy issued in favour of the Respondent through a witness whose statement on oath had been abandoned goes to no issue.
?It was submitted that the evidence of the sole witness for the Respondent, Mathew Omidire that the sum of N125,000 was paid for the disputed land measuring 5.185 hectares contradicts the
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pleading of the Respondent which asserted that N12,500.00 was paid for another disputed land of the same measurement.
Learned counsel for the Respondent argued each issue in two parts each titled “main submission” and “alternative submission”. In the first part of each issue the learned counsel challenged the competence of the ground/issue. In the second part he argued the issue presented by Appellants for determination.
Learned counsel for the Respondent in what he called the main submission submitted that ground one is a ground of fact or at most of mixed law and fact which needs leave of Court before it can be properly and competently argued and as such leave was not sought and obtained appellants’ ground one is not competent and should be struck out.
Learned counsel for the Respondent also adopted his arguments on ground/issue one to urge the Court to hold that ground/issue 2 is incompetent by reason of the Appellants having not sought and obtained leave of Court before arguing same.
On issue 1, learned counsel for the Respondent pointed out that the sale agreement dated 9th May 1977 was attached to Exhibit P1. That it was
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tendered with Exhibit P1. That the Respondent had thus shown it came about the land by tendering the document of purchase of the land.
The Respondent, it was argued, nowhere applied that Exhibit P1 or the evidence of PW1, PW2 and PW3 be dispensed with as witnesses.
It was submitted that if the Appellants had any objection to the Respondent presenting its four witnesses or the tendering of Exhibit P1 they ought to have done so timeously. We were referred to Oba E. A. Ipinlaye II v. Chief Julius Olukon (1996) 6 SCNJ 74 and Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387.
The Respondent, it was submitted, merely amended its statement of claim and did not at any time indicate that it was abandoning any of the witnesses it intended to call. Therefore the evidence of PW1-PW4 was rightly taken by the lower Court.
It was submitted that when it is said that pleadings are amended, all it means is that it is the statement of claim or statement of defence that are amended. If it is sought not to call a particular witness such witness could be ignored and his evidence abandoned. It does not mean that witnesses written statements on oath of
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witnesses who are intended to be called to testify and whose written statements on oath are already filed should be duplicated as argued by Appellants.
It was submitted that the lower Court was right on the evidence led to enter judgment in favour of the Respondent.
It was submitted that from the evidence of PW1-PW4 and Exhibit P1 and the sale agreement attached to it the lower Court was on firm ground when it entered judgment in favour of the Respondent.
Exhibit P1, it was submitted contains the written agreement signed by the 3rd and 4th Appellants among other people.
On issue 2, learned counsel for the Respondent submitted that the land on which Exhibit P1 was issued was the exclusive property of the 3rd and 4th Appellants’ father in the person of late Elutunde Famuyiwa. Paragraphs 16-20, 22 and 23 of the second Amended Statement of Claim, it was submitted on page 187-189 of the record of appeal were not controverted by the Appellants. The facts were therefore deemed admitted. These facts, it was submitted, were further confirmed by the evidence of PW1. Therefore the late Elutunde Famuyiwa did not require the consent of any
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member of the larger Akiti family to dispose by sale to the respondent their exclusive family land as they did to the Respondent. The PW1, it was submitted, was not cross-examined.
It was submitted that the sale agreement attached to Exhibit P1 and executed by members of the Famuyiwa family is valid and did not require the consent of the DW2 who is not a member of the Famuyiwa family but only an extended member of Akiti family.
Learned counsel for the Respondent observed that a slip occurred with regard to the purchase price of the land in dispute that is the mistake of writing N125,000 instead of N12,500 which was a mistake of counsel. This, it was submitted, did not affect the totality of case on the face of Exhibit P1.
In his reply brief of argument the Appellants submitted that the appeal is against the final decision of the lower Court. Therefore the Appellants are entitled to appeal as of right under Section 241(2) (a) of the 1999 FRN.
Although a Respondent should raise a preliminary objection by a separate notice and should not raise it in the brief of argument, the Respondent is now permitted to raise such preliminary
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objection in his brief of argument. However before such objection is raised in the brief of argument the Respondent must have sought and obtained the leave of the Court of Appeal before the commencement of oral hearing. Failure to seek and obtain leave of Court by the Respondent to move his objection before the oral argument commences will render such objection incompetent and will be struck out. See Okolo v. U.B.N. Ltd (1998) 2 NWLR (Pt. 539) 618 and Agbaka v. Amadi (1998) 7 SC (Pt. 11) 18. The filing of notice can no longer be insisted upon because the Appellant has every ample opportunity to react to the objection in the brief of argument.
In the instant case, the Respondents breached everything about the rule in that they did not only fail to file a notice of preliminary objection, what they argued in the brief without seeking the leave of this Court was titled “main issue” and not a preliminary objection. For this reason the purported objection should be struck out.
I accordingly strike out the purported preliminary objection.
The purported preliminary objection even on the merit has no basis. This is so because as learned counsel
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for the Appellants rightly submitted, the appeal is against a final decision of the lower Court and the Appellants have a constitutional right of appeal against it and no leave of the lower Court or this Court is required before appealing to this Court. See Section 241 (1)(a) of the Constitution FRN which provides as follows:
“241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases.
(a) Final decisions of the Federal High Court in any Civil or Criminal proceedings before the Federal High Court or a High Court sitting at first instance.”
Now turning to the main appeal; the Courts have held since 8th October 1976 when Idundun v. Okumagba was decided by the Supreme Court that a plaintiff may prove title to land in any of the following ways: By traditional evidence; production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time, by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in
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circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. The law is that any of the five ways is sufficient proof of ownership. See: Idudun v. Okumagba (1976) 9 & 10 SC 337 and Mojaji v. Cadbury Nig Ltd (1985) NWLR (Pt. 7) 393.
Learned counsel for the Appellants urged the Court to consider the written statements on oath of PW1, PW2 and PW3 which did not accompany the 2nd amended statement of claim as having been abandoned.
It has been established by a plethora of authorities that the appropriate time at which a party to proceedings should raise an objection based on a procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party sleeps on that right and allows the proceedings to continue on the irregularity to finality, then the party cannot be heard to complain at the concluding stage of the proceedings or on appeal thereafter that there was a procedural irregularity which vitiated the proceedings. The only exception to this general rule is that the party would be allowed to complain on appeal
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if it can be shown that the party had suffered a miscarriage of justice by reason of the procedural irregularity. See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405. The written statements on oath of the PW2 and PW3 accompanied the statement of claim. The written statement on oath of the PW1 accompanied the amended statement of claim. The written statement on oath of the Pw4 accompanied the 2nd amended statement of claim. When Pw1, Pw2 and Pw3 were called as witnesses and each of them adopted his written statement on oath as his evidence-in-chief there was no objection to their adopting the written statements on oath as their evidence in chief.
In my view, the Appellants cannot now be heard to say that the written statements on oath are deemed abandoned; particularly when they have not shown that they suffered any miscarriage of justice as a result of the adoption of the written statements on oath that accompanied the statement of claim and the amended statement of claim instead of the 2nd amended statement of claim.
Learned counsel for the appellants contended that objection was raised to the tendering of Exhibit P1 and yet the Court
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admitted it. Is the argument justified? See page 271 of the record of appeal on the relevant proceedings of the lower Court on this contention:
“Pw2: ?
? I made reference that I obtained a Certificate of Occupancy in respect of the land in dispute.
Mr. Arasanmi: Seeks to tender it in evidence.
Mr. George is opposing the admission of the document.
Mr. George withdraws his objection.
RULING: The certified True Copy of Certificate of Occupancy registered as No. 33 at page 33 Volume 42 is hereby admitted in evidence and shall be marked Exhibit P1.
Cross-Examination by Mr. George: NIL”
In my view the note above by the lower Court that Mr. George withdraws his objection does not justify the contention by learned counsel for the Appellants that the lower Court admitted the Certificate of Occupancy despite objection.
Learned counsel for the appellants further contended that the agreement of sale of the land was not tendered. But learned counsel for the Respondent on the contrary asserted that the agreement was attached to the Certificate of Occupancy Exhibit P1. The learned counsel for the Appellants kept
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on the matter after the Respondent’s response. I have seen Exhibit P1 to which is attached a sale of Land Agreement made on 9th May 1977. It appears to me that from the evidence of Pw1 and Pw2 who were not cross-examined by learned counsel for the Appellants and also Exhibit P1 that the Respondent proved its entitlement to the land in dispute. The sale agreement attached to Exhibit P1, the Certificate of Occupancy was signed by the 3rd and 4th Appellants children of the vendor.
The lower Court in my view properly evaluated the evidence led by both parties. I cannot resist the temptation to reproduce part of the lower Court’s findings at page 337-338 of the record of appeal where the lower Court stated as follows:
“It will be noted that the evidence continained (sic) in the written statement on oath of Pw1 David Esolade covered almost all the averment in the statement of claim relied upon by the complainant. He testified therein among other that he was a very close friend of Famuyiwa Elutunde the father of 4th defendant and others; he explained how Rotimi Famuyiwa the elder brother DW1 finished his apprenticeship of Refrigerator repairer but the
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family could not raise money to set him up. The family decided to sell the land in dispute, they approached the claimant’s officer, N12,500 purchase price was paid by the claimant to the family and the claimant who had earlier inspected the land took possession of the land in dispute. He testified further that Famuyiwa allocated parcels of land to him and other people as Tenant on the land. He gave a description of the family of the Late Elutunde Famuyiwa. How one Pa. Makinde Amolaja from the extended family of the defendants was involved in the sale and now Pa. Makinde Amolaja delegated another family member of the defendants Olatunji Akiti to supervise the sale and the payment of the price.
On all these, PW1 was not cross examined by the defence counsel at all. A similar scenario was reproduced with the evidence of Pw2, though short one, and related only to Exh. P1, the Certificate of statutory right of occupancy in the main, which the witness deposed was obtained in the name of the claimant and that he saw 2nd and 3rd defendant trespassing on to the land and reported them to the claimant, Pw2 was not cross examined; of course if a witness evidence
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is not tested by cross examination, the Court has the right to believe the evidence of witness unless it is not credible evidence.”
I cannot fault the above finding of the lower Court. It appears to me as I have stated above that the lower Court rightly entered judgment in favour of the Respondent. It was not necessary for the appellants’ witnesses or one of them to repeat the claim of the Respondent in the written statement/s on oath as learned counsel for the Appellants argued.
In my view issue 1 should be resolved in favour of the Respondent.
I therefore resolve it in favour of the Respondent.
Issue 2 is very short. The appellants’ case is that the land in dispute was part of Akiti land owned by the children, grand children and great grand children of the said Akiti. However from the pleadings and evidence of Pw1, I am of the view that the lower Court rightly rejected this claim of the Appellants that the land was not partitioned and belonged to the children and grand children even the great grand children. This is so because the Appellants did not controvert Paragraphs 7, 10, 11, 12, 13, 14, 15, 16-20, 22 and 23 of the 2nd
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amended statement of claim of the Respondent where it was pleaded that it was the father of the 3rd and 4th appellants who owned the land.
Furthermore, they did not cross-examine the Pw1 who testified in line with the pleadings of the Respondent that the land belonged to the father of the 3rd and 4th Appellants. It is not surprising therefore that 3rd and 4th Appellants signed the Sale of Land Agreement with their brother Rotimi Famuyiwa as vendors.
The learned counsel for the Appellants again sought to fault the tendering of the certificate of occupancy Exhibit P1 through Pw2 on the ground stated earlier in this judgment, that is, that the statement on oath of the witness was deemed abandoned since it did not accompany the last amended statement of claim. As I stated elsewhere in the judgment when the witness sought to adopt and actually adopted the written statement on oath, the Appellants did not object to his doing so. It is too late for them to now claim that the written statement on oath of the witness was abandoned moreso that they have not shown what miscarriage of justice they suffered as a result of the adoption of a written statement
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on oath that did not accompany the 2nd amended statement of claim even though it accompanied the earliest statement of claim.
Since the written statement on oath of the Pw2 was not abandoned as wrongly contended by the learned counsel for the Appellants, it follows therefore that the Certificate of Occupancy was properly admitted.
Learned counsel for the Appellants sought to establish some contradiction in the evidence of the Respondent’s witnesses because the Pw4 at page 190 of the record of appeal in his written statement on oath said that they bought the land in dispute at the cost of N125,000 instead of N12,500 pleaded by the Respondent. I am in agreement with the learned counsel for the Respondent that this was a mere slip. This is why the Appellants’ counsel failed to cross-examine the witness on the slip. It is also clear from the following that it was a mere slip. Firstly the Respondent pleaded that the land was purchased for N12,500.
The Pw1 who I will call the star witness for the Respondent stated that the land was purchased by the Respondent for N12,500. The sale agreement attached to the Certificate of Occupancy shows that
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the land was purchased for N12,500.
All these point to the fact that the land was bought for N12,500.
Issue 2 is also resolved in favour of the Respondent.
Both issues having been resolved in favour of the Respondent this appeal should therefore be dismissed.
It is dismissed by me.
No costs awarded.
Other Citations: (2016)LCN/8759(CA)
