Kamaldeen Toyin Fagbenro V Ganyiyewhe Arobadi & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C.
In the High Court of Lagos State, holden at Ikeja, the respondents as plaintiffs claimed against the appellant as defendant, the following reliefs as per paragraph 20 of their amended statement of claim:
(a) An order of declaration of statutory right of occupancy alternatively customary right of occupancy in respect of the farmland situate lying and being at Itoge Road Village, Badagry Lagos, a survey plan of which will be filed hereafter i.e. plan No.SBS/442/84L.
(b) N500.00 damages for trespass on the said land described in 20(a) above which act of trespass was committed by the defendant, his servants, agents and/or privies,
(c) An order of perpetual injunction restraining the defendant by himself his servants, agents and/or privies restraining them from further acts of trespass over the said land described in 20(a) above.
Pleadings were thereafter ordered, filed and exchanged between the parties. At the trial, both parties called witnesses who gave evidence in support of their respective cases. The learned trial Judge Sotuminu J. (as she then was) after hearing the addresses of counsel for the parties delivered her judgment on 29th June, 1992 and concluded by saying:
“the plaintiffs’ case fails in its entirety and it is dismissed accordingly”.
Dissatisfied with this decision, the plaintiffs/respondents appealed to the Court of Appeal which after hearing the appeal allowed the appeal, set aside the decision of the trial court and ordered that the action of the plaintiffs/respondents succeeded in the trial court.
The appellant now appealed to this court against that decision of the Court of Appeal. He filed five grounds of appeal and in his brief of argument he raised four issues for determination of this court in the appeal. The issues are:
- Whether the Court of Appeal rightly interpreted and applied the evidence of the 2nd DW which was given in Yoruba Language and translated into English Language as meaning that the appellant bought the land in dispute from the offsprings of the respondents.
- Whether the Court of Appeal was right in setting aside the finding of the trial court on exhibit.
- Whether on the evidence before the court, the appellant discharged the burden of proof on him by preponderance of evidence.
- Whether the Court of Appeal properly construed exhibit D which they held to be patently ambiguous.
The respondents formulated three issues for determination in their joint brief which read:
- Considering the admission made by the defendant/appellant that plaintiffs/respondents are the original/radical owners of the land in dispute, whether the appellant has succeeded in discharging the burden of proof that an absolute grant of same had been granted to the appellant.
Alternatively
That the respondents have divested themselves of title in respect of the said land in dispute.
- Can the said burden be discharged by contradictory and irreconcilable evidence adduced by the appellant and his only witness.
- Whether the Court of Appeal is not in a position as the trial court to make proper inferences as to the accurate interpretation of documentary evidence adduced by parties more so as question of credibility of witnesses is not called to question.
The facts giving rise to this case are straight forward and not very much in dispute. It is a simple land dispute between the parties. The appellant admitted in his pleadings and evidence that the respondents are the radical owners of the land in dispute but that they sold the land to him and put him in possession thereof. He produced in evidence the survey plan of the land in dispute and the receipt witnessing payment for the land which receipt was thumb printed by all the respondents except the 4th. The respondents pleaded that the appellant trespassed on the land in dispute.
I have carefully examined the grounds of appeal filed by the appellant in this appeal and I am of the clear view that the issues raised there-from by the appellant in his brief are apposite and I shall consider them accordingly.
On the four issues raised by the appellant, it is my considered view that issues 1, 2 and 4 should be taken together because they all danced around exhibit D, the receipt witnessing the sale of the land in dispute.
I take these issues together. The evidence of DW2 which is the subject of issue 2 is contained on pages 69 – 70 of the record and it reads:
Jimoh Fagbenro, sworn on the Koran and states in Yoruba Language. I live at No.6 Posunko Street Badagry. I am a farmer I know the defendant, he is my full brother. I know all the plaintiffs. I have seen exhibit D before. My names are on the exhibit. I signed it. Apart from myself, the children of the land owners thumb printed exhibit D I was present when they thumb printed. Before the paper exhibit D was thumb printed, the defendant paid part of the money.
The contents of exhibit D was read to the children of the land owners before they thumb printed it. The owners of the land are the plaintiffs.
Cross-examined by the plaintiffs counsel; I admit that I have a portion of land in dispute.
The portion owned by me was given to me by the defendant in 1972, after the land was sold. The survey of the land was carried out in 1979. It was surveyed after exhibit “D”. I can read if i see ‘Arobadi family’ I cannot see Arobadi family on exhibit “D”.
Re-examined: None”.
This is all the evidence of the 2nd DW at the trial. From the evidence of DW2, there is no doubt that all what the witness said was that the land in dispute was bought from the children of the land owners and that the owners of the land are the plaintiffs.
What he failed to say and was not re-examined on this was that the plaintiffs are the children of the land owners. So I am satisfied that the Court of Appeal will be perfectly justified in holding that:
From the evidence of this witness who is a brother to the respondent the land in dispute was sold by the offsprings of the plaintiffs or some of them.
But from the pleadings and evidence of the appellant who was DW1 at the trial, it was not in dispute that the land in dispute was part of the land belonging to the Arobadi family of Badagry as the radical owners. It was also not in dispute that the 1st, 2nd and 3rd respondents are the regenators/descendants of the Arobadi family entitled to the family land which was the reason why they instituted this action. It is important or crucial in this action to observe that no evidence, oral or documentary was adduced or produced by any of the respondents to deny that the land in dispute did not belong to the Arobadi family or that none of them is a member of that family.
The appellant testified in his evidence that it was the 1st, 2nd and 3rd respondents who sold the land in dispute to him after he was satisfied that the land belong to their family. He also testified that after making payment of the purchase price of the land in dispute in 1979, a receipt (exhibit D) was executed by the 3 respondents and his own brother DW2, and was given to him. He confirmed that the respondents thumb printed exhibit D, he identified the receipt in court and both himself and his brother DW2 identified the thumb prints of the respondents on exhibit D.
The trial court accepted the evidence of both DW1 and DW2 as true, and putting together their evidence in the absence of any evidence of denial from the respondents, there is only one conclusion, and that is the land in dispute was properly sold to the appellant by the respondents, the radical owners of the land. He was put in possession since 1979 and was not disturbed until 1985 when this action was filed in the trial court.
In construing exhibit “D”, the Court of Appeal on page 164 of the record examined the evidence of the appellant’s brother DW2 Jimoh Fagbenro, and said:
From the evidence of this witness who is a brother to the respondent, the land in dispute was sold by the offsprings of the plaintiffs or some of them. The respondent himself gave the impression in this evidence that lacks precision on this point that the plaintiffs themselves sold the land to him while his witness said it was sold by their children who thumb printed on the receipt. In other words, the thumb prints on the receipt are not those of 1st-3rd plaintiffs or any of the plaintiffs for that matter but their children.
I have already said that the evidence of DW2 was not specific on who the children of the land owners are. And although he was present when the children thumb printed exhibit D and he identified the thumb prints in court, he did not say who the children were. But the evidence of the appellant read with that of DW2, makes everything clear without any doubt. Appellant in his evidence identified the names and thumb prints of the respondents on exhibit D. The appellants evidence that the respondents are members of the Arobadi family was not denied or challenged. Therefore the mere reference to them as children by DW2 in his evidence does not make them different persons. In fact the Court of Appeal further held on page 164 ibid that:
I have studied exhibit “D” and I notice that the people whose names were written in it are the 1st – 3rd appellants who were equally described as having signed and thumb printed it.
I entirely agree with the Court of Appeal on this statement. This confirmed the evidence of the appellant at the trial and to a certain extent supported by that of DW2 his brother. Therefore, exhibit “D” is not ambiguous in anyway and there is nothing wrong with it as far as the sale transaction was concerned. From the evidence mentioned above of the appellant and DW2 at the trial as accepted by the trial Judge, there is, with due respect to the Court of Appeal nothing about who thumb printed exhibit “D”. On the totality of the evidence at the trial, and after examining exhibit “D”, I find that exhibit D was thumb printed by the three respondents witnessing the sale of the land in dispute to the appellant.
I therefore agree with the submission of the appellant’s counsel in the brief that the Court of Appeal did not correctly construe exhibit E in this case and that it was wrong in setting aside the proper findings of the trial court in respect of same. This means that issue 1, 2 and 4 are resolved in favour of the appellant. I so do.
Before considering issue 3, I wish to observe that in the pleadings of both parties, no question as to the validity or otherwise of the sale of the land was raised and when the appellant pleaded the sale of the land to him by the respondents, witnessed by exhibit”E” no reply was filed by the respondents. It was therefore wrong for the Court of Appeal to suo motu raise the issue of validity of the sale by imputing that the respondents were not the right persons in the Arobadi family to sell the land in dispute. By doing this, the Court of Appeal is making a new case different from what the respondents made for themselves and this is not acceptable in law.
See Aseimo v. Amos (1975) 2 SC 57; Olatunji v. Adisa (1995) 2 NWLR (Pt.376) 167; Alhaji Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (Pt.606) 330.
Issue 3, asked whether the appellant has discharged the burden of proof on him on the preponderance of the evidence adduced at the trial. I think the answer to this is obviously positive having regard to what was considered and explained in respect of issues 1, 2 and 4 above. There was clear evidence of the appellant and his brother DW2, that the land in dispute which belonged to the respondent’s family, was sold to the appellant by the respondent and witnessed by the execution of exhibit “D”, and was put in possession thereof. There was no reliable or accepted evidence of the respondents to the contrary.
On this, the learned trial Judge had this to say:
“The next question is whether the defendant in this case had discharged the burden of proof placed upon him. In his pleading and evidence the defendant established that the 1st, 2nd and 3rd plaintiffs in this action sold the land in dispute to him. He tendered exhibit “D” the receipt issued by the said 1st-3rd plaintiffs. The said 1st to 3rd plaintiffs did not give evidence denying issuing the said receipt and infact they were not called as witnesses throughout the trial… The defendant also proved that he had been on the land since 1976.
He surveyed it… The above evidence were not challenged by the plaintiffs in their evidence-in chief nor was the witnesses of the defendant challenged nor discredited on those established facts.
I therefore accept these pieces of evidence of the defendant which remained undiscredited by the plaintiffs.
I cannot agree more with the learned trial Judge’s assessment of the evidence of the appellant at the trial in view of the evidence before her. She saw and heard the witnesses and is fully entitled to her findings on the evaluation of the evidence. See Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511; Ajero v. Ugorji (1999) 10 NWLR (Pt.621) 1; Okeke v. Agbodike (1999) 14 NWLR (Pt.638) 215. I see no reason to disagree with her.
Issue 3 is therefore answered in the affirmative.
From all what I said above, I find that there is merit in this appeal. I allow it and set aside the decision and order of the Court of Appeal and restore the decision of the trial court. I award the appellant N10,000.00 costs against the respondents jointly.
SC.232/2001
