Modupe Ifayinminu V. Mrs. Taiwo Fadayomi & Anor (2004)
LawGlobal-Hub Lead Judgment Report
CORDELIA IFEOMA JOMBO-OFO, J.C.A.
This appeal stems from the decision of A.O. ADEBUSOYE, J. of the Ondo State High Court sitting at Ondo in a judgment delivered 12th October, 2010 affirming the judgment of the Customary Court of Ondo State delivered 27th June, 2008 in favour of the plaintiffs herein the respondents.
FACTS OF THE CASE
The respondents who were the plaintiffs at the Customary Court by a plaint claimed against the appellant as the defendant for entitlement to the Customary Right of Occupancy over the farmland situate at Okepu Road, via Ondo in Ondo State, damages for trespass and injunction.
The case went to trial wherein the respondents called five witnesses and the appellant called two witnesses. While testifying the appellant gave the location of the land in dispute as being at Igomola consequent upon which the respondents applied that a visit be made to the locus in quo. Appellant’s counsel excused himself from the visit to the locus on personal ground but assured that his client the appellant was going to join the court and respondents to the locus and a date was fixed. Having foiled the scheduled visit to the locus in quo on two consecutive occasions by the absence of the appellant and of her counsel, the trial court adjourned the case for address and thereafter adjourned for judgment.
By its judgment delivered 24th June, 2008, the trial customary court granted all the claims of the respondents against the appellant. The appellant appealed against the said judgment of the trial customary court to the High Court of Ondo State which appeal was dismissed on the 12th of October, 2010. The appellant being dissatisfied with the dismissal of her appeal by the High Court is now on appeal before this court vide Notice of Appeal dated and filed 18th March, 2011 and containing nine (9) Grounds of Appeal.
The parties in compliance with the rules of this court duly filed and exchanged their briefs of argument. The appellant’s brief of argument is dated 27th February, 2012, filed 28th February, 2012 but deemed properly filed on 3rd December, 2012 while the reply brief is dated 9th December, 2013 and filed 10th December, 2011. Both briefs were settled by BADE AWOSUNLE, ESQ. The respondents’ brief of argument dated and filed 22nd November, 2013 was settled by R.O. OGUNMOYERO, ESQ.
At the hearing of the appeal on 16th January, 2014, the learned counsel for the appellant adopted and relied on both briefs as their argument in the appeal. He urged on us to set aside the judgment of the lower appellate court and dismiss the respondents’ claims granted them at the trial customary court. On the part of the respondents, learned counsel on their behalf having made an oral application to withdraw the respondents’ brief of argument dated and filed 7th January, 2013 but deemed properly filed on 10th October, 2013, the same was withdrawn and struck out. He then went on to adopt and rely on their brief of argument dated and filed 22nd November, 2013 as their argument in this appeal. He urged on the court to dismiss the appeal with substantial cost and affirm the decision of the lower court.
The learned counsel for the appellant has distilled the following four issues for the determination of the appeal:
i. Whether the lower court was right when it came to the conclusion that the respondents established ascertainable location and boundaries of the land in dispute. This issue relates to grounds 2, 3 and 4 of the grounds of appeal.
ii. Whether in the circumstances of this case, the lower court was right when it affirmed the judgment of the trial customary court on the basis of evidence of long possession. This issue relates to grounds 5 and 6 of the grounds of appeal.
iii. Whether the lower court was right when it agreed with the trial customary court that it was essential to visit locus in quo in this case so as to determine the boundaries of the land in dispute. This issue relates to grounds 7 and 8 of the grounds of appeal.
iv. Whether the lower court properly evaluated the evidence on record in this case. This issue relates to grounds 1 and 9.
Learned counsel for the respondents nominated three issues as arising for determination of the appeal. The issues are:
i.. Whether in view of the concurrent conclusions and findings of the two lower courts on the issue of the satisfactory proof by the respondents of their ownership of the land and the condemnable conduct of the appellant with respect to her boycott of the court for the visit to the locus, the Honourable court can interfere and disturb those findings and conclusions. The issues covers (sic) grounds 1, 7, 8 and 9 of the notice of appeal.
2. Whether the issue of the identity of the land in dispute can be disturbed in view of the concurrent findings of the two lower courts on the issue. This issue covers grounds 2 and 3 of the notice of appeal.
3. Whether the decision of the lower court can be disturbed taking into consideration the fact that pleadings are not filed at Customary Courts and other peculiar practice and procedure of such courts.
These issues cover grounds 5 and 6 of the notice of appeal.
The respective issues as raised by both sides appear to me to be intertwined and for this reason I think I can determine the appeal solely on the four issues raised by the learned counsel for the appellant. I therefore adopt them as the issues for determination of the appeal.
ISSUE (1) ONE
Whether the lower court was right when it came to the conclusion that the respondents established ascertainable location and boundaries of the land in dispute. This issue relates to grounds 2, 3 and 4 of the grounds of appeal.
The learned counsel for the appellant on the foregoing issue refers to the conclusion of the lower appellate court as reached at page 8, lines 12 – 19 and page 79, lines 18 – 19. He submits that in law, unlike artistic paint, there is no room for visual harmony of divergent compliments. That once there is inconsistency and discrepancies in the evidence of a party and his witnesses and no reasons are adduced to explain the inconsistency and the discrepancies, the evidence of the party is said to be contradictory; and the courts are not allowed to rely on such evidence to resolve an issue in favour of a party. See Maigoro vs. Bashir (2000) FWLR (Pt. 19) 533 at 571.
Learned counsel contends that once the lower court found that there is difference between the evidence of boundaries adduced by PW3 and PW4 with the boundaries as stated in the plaint, the court has the duty to find out the effect of the differences on the issue of boundary and whether from other evidence on record the differences as discovered by the lower court and the issue of the boundaries of the land in dispute does not go to the root of the case of the respondent. Counsel argued that from the evidence on record in this case that there is no scintilla of evidence that the land in dispute is known to both parties; neither is there any evidence on record whereupon the court can infer the identity and boundary of the land in dispute. See Kamalu vs. Umunna (1997) 5 SCNJ 191 at 205; and Gbadamosi vs. Dairo (2007) 29 NSCQR 137 at 165.
He further submits that the respondents in their plaint gave the location of the farmland as situate and being at Okepu road, via Ondo in Ondo State but in the respective oral testimonies of the PW1, PW2, PW3, PW4 and PW5 they adduced different locations and boundaries to the farmland. No reason was adduced for the different names and locations ascribed to the land in issue. Counsel relied on Eboade vs. Atomesin (1997) 5 SCNJ 1 at 20. He argued on that though the lower court came to the conclusion that the evidence of boundaries adduced by the PW3 and PW4 is slightly different from that stated in the plaint, yet it failed to compare their said evidence with each other and thus failed to pronounce on whether the two sets of evidence are contradictory.
Again in his contention, the learned counsel stated that the lower court also imported extraneous matter into the case when it came to the conclusion, that the evidence of boundaries adduced by the PW2 is that of the farm of PW2. Counsel submitted that the evidence of boundaries as adduced by the said PW2 is that of no other land but the land in dispute. Submits that in view of the contradictory evidence of identity, location and boundaries of the land in dispute as adduced by the respondents, the lower court was wrong to have come to the conclusion that ascertainable boundaries of the land in dispute has been made out. That where a plaintiff (the respondents in this case) fails to give ascertained description of the land in dispute as in this case, the court will have no option than to dismiss the claim to declaration of title. See Salami vs. Gbodoolu & Ors. (1997) 4 SCNJ 196 at 208.
Counsel’s further submission is that the respondents not only failed to prove the identity of the land in dispute, they failed altogether to adduce any evidence on the boundary of the land said to be originally owned by Late Chief Loyinmi Fanika, their predecessor on the land in dispute, of which the land in dispute is said to form a portion. He said that it is a fact which by itself or in connection with other facts makes the existence or non existence of fact in issue or relevant fact probable or improbable. See:
1. Salami vs. Gbodoolu & Ors. (supra) at 209.
2. CA/B/232/2007; Awosunle & Anor. vs. Fagbemi & Anor. (Unreported) judgment delivered 12th day of December, 2011 by Court of Appeal, Akure Division at page 22.
Counsel urged that we resolve the issue in favour of the appellant.
The learned counsel for the respondents made some relevant submissions as regards issue 1 (one). At paragraph 4.19 of the respondents’ brief of argument, learned counsel on their behalf while reacting to the appellant’s submission that there is no scintilla of evidence on record that the land in dispute is known to both parties, submitted that this does not represent the true position. Counsel went on to refer the court to page 31, lines 5-7 as well as the appellant’s evidence at page 17, lines 24 – 25 and page 18, lines 22 – 28 of the record of appeal.
Respondents further submit that the farm which the appellant said she was in at the time the police came to arrest her, is no other than the land in dispute and as described by the respondents. Again that the land in dispute which the appellant said is there for people to see is no other than the land in dispute and as described by the respondents. Submits that it is therefore wrong for the learned counsel for the appellant to say that there is no scintilla of evidence on record that the land in dispute is known to both parties. The argument according to counsel is clearly off the mark and he urged the court to so hold in favour of the respondents.
Again at paragraphs 4.13 – 4.14 of the respondents’ brief, counsel on their behalf argued that the appellant’s description of the land in dispute as being at Igonmoba is a deliberate attempt to mislead the court and to create the impression that the identity of the land is not certain. Counsel contended that once the land in dispute is known to both parties, the identity of the land will no longer be an issue even where one of the parties describes it differently. He recalled that the appellant agreed that he was arrested on the land and was taken to the police station. The appellant refused to go to the locus to show the court the land in dispute.
According to the learned counsel for the respondents this further shows the appellant’s deliberate attempt to mislead the court. Counsel relying on Aremu vs. Adetoro (2008) 159 LRCN 171 at 196; warned the court not to be misled and to beware of parties’ antics of describing the land in dispute differently as such different description may not necessarily be fatal or detrimental to a party’s case. See also Nwokorobia vs. Nwogu (2009) 172 LRCN 41 at 73 A – K.
Against this backdrop, the learned counsel for the respondents has urged that we resolve this issue in favour of the respondents and dismiss the appeal on grounds 1, 2, 3, 7, 8 and 9.
RESOLUTION OF ISSUE (1) ONE
It is trite that the acid test in a claim for declaration of title to land is whether a surveyor, taking the record could produce a plan showing accurately the land to which the claim is laid. This is to say that the identity and boundaries of the land have to be ascertainable with a degree of certainty.
In their plaint at the trial Customary Court, the respondents gave the location of the farmland as being and situate at Okepu road’ via Ondo in Ondo State. The following boundary neighbours were stated in their plaint:
On the right side by Akinbohun Akinsuyi farmland.
On the left by Madam Ereola Akinjiyan farmland.
At the front by OkePu road.
At the back by Ezekiel Adepoju farmland.
In their evidence in court aimed at discharging the burden placed on them with regard to ascertaining with certainty the identity and boundaries of the farmland, the respondents testified thus:
PW1 (Chief R. A. Igbekoyi) in his evidence-in-chief:
” …. I know the land in dispute. The land in dispute is after Ayeyemi on Lekere road. The place is also called Okenla. The original owner of the land in dispute was late Loyinmi Fanika…… the road to Okenla leads to Okeguru.” (See page 8, lines 8 and 9 and page 9, line 1 of the record).
Though the PW1 has given his own version of the location of the land in dispute but he failed to give the boundary neighbours.
The PW2 (Christiana Ereola Akinmoladun) on her part testified thus in respect of the location and boundary neighbours of the land in dispute:
“…..I know the farmland in dispute. The farmland consists of cocoa and kolanut and it is situate at Okenla junction on the way to Okeguru. The farmland originally belonged to our forefather late Fanika…… I have my own farm on the land where I planted cocoa, kolanut, cashew and cassava. At the front by a main road, on the left when entering the farm and form boundary with first plaintiff. At the back by Pa Adebayo’s farm and on the right by Chief Sokalu. Pa Adebayo has farm on the land.” (See page 9, lines 9-12 and 16 and 17 of the record).
PW3 (Olusina Duyile) went on as follows in his evidence:
“….. I know the land in dispute which is on Okepa road Okenla….. My mother’s farm share boundary with the first plaintiff but there is a road between the two farms. The road I talked of is a motorable road…. That beside my mother’s farm, one man named Olapade now deceased has a farm, at the bottom near the stream one Ezekiel Adepoju has his farm there. When facing the farm from Ondo and on the right side one Akinbohun has his farm there but had sold it to one Adekalu. Madam Ireola, Chief Igbakeji have farms there….” (See page 10, lines 23, 29 – 31, 34 – 36 and page 11, lines 1 – 3 of the record).
PW4 (Godspower Ajire) testified that:
“….. I know the plaintiff’s farm at Okenla on Okepu road…The land in dispute is of the Fanika family. Those having farms around the land are late Madam Ayoka, late Akinbohun, Pa Abayo, Mrs Ereola and Chief R. A. Igbekoyi. (see page 11, lines 20, 32-33 and , page 12, line 1 of the record).
PW4 went on under cross examination to state the boundary neighbours as:
“…. The land is bounded on top by Pa Abayo, late Madam Ayoka forms boundary at the bottom, at the back by Madam Ereola. The fourth side had been sold to one Adekolu. (See page 12, lines 5 – 7 record of appeal).
Altogether the PW4 gave ewvidence of location as well as boundaries of the farmland in dispute.
On the part of PW5 (Eunice Akintimehin), she led evidence to wit:
“….. our farm situate at Okenla, Okeguru. …… The farm is bounded on the right side by Pa Akinbohun on the left by Madam Ireola, at the back by Ezekiel Adepoju and in front by Sina….” (See pages 12 and 13, lines 32 and 36 – 38 of the record).
There exists in the foregoing some discrepancies in the evidence as adduced above by the respondents whilst trying to establish the identity, the location as well as the boundary neighbours of the farmland in issue when placed side by side with their plaint, Whilst in the plaint the respondents simply referred to the farm as being and situate at Okepu road, in their evidence they claimed same to be and situate in Okenla leading to Okeguru. It can be inferred that Okepu road is situate at Okenla.
Regarding the boundary neighbours, the respondents had gone on to mention more boundary neighbours in the course of their evidence than they enumerated in their plaint. Undoubtedly the respondents failed to explain the reason behind their expansion of the boundary neighbours beyond what they have in their plaint. The court from the evidence on record can decipher if the appellant was in any way misled with regard to the identity and location of the said farmland. To actualize this I need to refer to some relevant portions of the evidence led on behalf of the appellant.
The DW1 (Mr. Ijigbemi Akinbileje) while before the trial Customary Court and on oath testified inter alia:
“….. My family farmed on the land in dispute as at that time. The farm of defendants father was called Igomola…. Late Pa. Fayinminu cultivated his farm to the old road called Okepuu. When going to Okepuu the defendant’s farm is on the right….” (See page 16, lines 37-38 and page 17, lines 4-5 of the record).
In the course of cross examination, the DW1 also said:
“I do not know the boundaries of the land in dispute….. The defendant took me to the land in dispute and showed me…. I know cocoa and kolanut on the land in dispute.”
The appellant himself (Modupe Ifayinminu) testifying in the case as the DW2 stated thus:
“….I do not know their land as I only farmed on my grandfather’s land….Sometimes last year, the plaintiffs came to me with two policemen and accused him (sic) of trespassing on their land…
The land in dispute is at Igomola. The land was granted to my late grandfather by Tewogboye the first who started reigning in 1901…. My late grandfather farmed on the land until his death and after his death my own father inherited the farm and continued farming on the land. Okenla is very large and has branches. The branches are Igomola, Aipo, Itaoba, Ayila, Orin and Omi Agbede…… The boundaries of the land in dispute are as follows. On the right is bounded by Adebamowo farmland, on the left by his own undisputed portion and Geneto. At the front by Okepu road and at the back by Omi Agbede…. I urge the court to dismiss the plaintiffs case and to retrieve the farmland for me. (See page 17, lines 21 – 22, 24 – 28 and 33 – 34, page 18, line 1, 6-8, 12 – 15 and 18 – 20 of the record).
When the DW2 was cross examined he said thus:
“,…. I was arrested by the police and taken to Chief Igbekoyi’s house that is PW1, I did not plead in PW1’s house that I would not go on the land again….. The land in dispute is there for people to see.” (See page 18, lines 24 – 26 and 28 – 29 of the record).
It is clear in the foregoing evidence adduced on behalf of the appellant that they know the land in dispute. Appellant claims to have been farming on that land to the point when he was arrested on it and he said in very clear terms that the land in dispute is there for people to see. I am satisfied that the parties on both sides know with certainty the identity of the land in issue between them.
It is therefore not an issue that while the respondents claim the land to be and situate at Okenla simplicita, the appellant claims same to be and situate at Igomola. The melting point in the evidence of both sides is that the appellant did acknowledge as shown above that Igomola is a branch of Okenla. Either way the end result is that both parties are ad idem that the land the subject matter of the dispute between them and which land is known to them is located at Okenla. Notwithstanding the fact that the parties gave variant names as the boundary neighbours of the land, all the same they are in consensus that it is bounded in front by Okepu main road and as contained in the plaint.
It seems to me and I so hold that bearing the fallibility of human memory the respondents, notwithstanding those minor discrepancies in the names of the boundary neighbours, have been able to establish the identity and location of the land in dispute. There is therefore enough evidence on record to show that the land in dispute is known to both parties.
More so as it has been enunciated in Salami vs. Ogbodoolu (supra) at page 207 that:
“When the parties, by the evidence adduced, both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or the area where it is located is called different names is not fatal to the plaintiff’s claim. See Makanjuola’s case (supra). The foregoing position or situation is separate and distinct from the situation in which, from the evidence led by a plaintiff, it is impossible to ascertain, with reasonable degree of certainty, the location of the land in dispute or a situation in which some of the witnesses who testified, on the point, for a plaintiff stated that the land in dispute was located in one place and other witnesses testified that it was at another place or at other places. Where from the evidence of a plaintiff’s witness or witnesses it is not reasonably possible to ascertain the location/identity of the land in dispute the production of a survey plan may be an answer to the problem.”
Leaning on the foregoing authority, I think that the respondents successfully led evidence in line with their pleadings where upon the lower trial court was able to come to the conclusion that ascertainable boundaries and or identity of the land in dispute has been made out. Issue one is therefore resolved in favour of the respondents and against the appellant.
ISSUE (II) TWO
Whether in the circumstances of this case, the lower court was right when it affirmed the judgment of the trial customary count on the basis of evidence of long possession. (Grounds 5 and 6 of the grounds of appeal).
On this aspect of the appeal the learned counsel for the appellant made submissions that from the endorsement on the plaint and the evidence adduced by the respondents at trial it is clear that the evidence of long possession of the land in dispute adduced by the respondents are based primarily on a title derived from their ancestor late Chief Loyinmi Fanika. Counsel referred, to the respondents’ first relief and submitted that the respondents’ witnesses all agreed in their testimony that late Loyinmi Fanika was the original owner of the land in dispute and that I the respondents had been in long possession of the land by virtue of their descent from late Loyinmi Fanika.
Learned counsel contended that the lower court was in error when it came to the conclusion that the claim of the plaintiffs/respondents’ ownership to the land in dispute is based on long possession, and went on to consider the long possession without first resolving whether the respondents established the title of Loyinmi Fanika, their root of title. He argued that there is no iota of evidence on record of how late Loyinmi Fanika came to own the land in the face of the denial of late Loyinmi Fanika’s title to the land vide a rival evidence of traditional history by the appellant who equally laid claim to the land and asserted that he is equally in possession of the said land in dispute. (See page 16, lines 32-38, page 17, page 18, lines 1 – 29). [The court is in doubt as to the accuracy of these pages thus referred to by counsel].
Counsel further placed reliance on Olohun vs. Adeyoju (2000) FWLR (Pt. 24) 1355 at 1388; and Ude vs. Chimbo (1998) 10 SCNJ 23 at 43 where Iguh, JSC held as follows:
“Without doubt, where a party pleads and relies on a particular mode of acquisition as his root of title, he is under a duty to prove such mode of his acquisition to the satisfaction of the trial court before his claim on declaration of title can succeed. Where, however, the radical title pleaded is not proved, it is not permissible to substitute a pleaded particular root of title that has failed with other matters such as acts of possession numerous and positive to warrant the inference of the ownership not pleaded as root of title.”
With reliance on Mogaji vs. Cadbuny (Nig.) Ltd. (185)(?) 7 SC. 59 at 71 – 72, the learned counsel for the appellant opined that the respondents failed to prove how Loyinmi Fanika came about the land in dispute and so possessory right of the land cannot be ascribed to them.
He further argued that the land in dispute being a land governed by customary law as the respondents’ relief nos. 1 seeks entitlement to the grant of customary right of occupancy, the respondents cannot turn around to rely on long possession as title by prescription is unknown to customary law. Counsel concludes that the lower court was therefore in error when it relied on evidence of long possession to affirm the judgment of the trial customary court.
He finally urged on us to resolve issue two in favour of the appellant.
With respect to this issue, the learned counsel for the respondents submitted that the learned lower appellant judge was right based on the evidence on record to find that the respondents were entitled to base their root of title on long possession.
He urged on the court to take judicial notice of the fact that pleadings are not filed at the trial customary court and as such the lower court had to scrutinize the record to ascertain the pivot upon which the respondents based their title to the land in dispute. Counsel referred to the evidence of PW1 (Chief R. A. Igbekoyi) at page 8, lines 9 – 12 of the record where he said inter alia:
“The original owner of the land in dispute was late Loyinmi Fanika. My father told me that he met his father Chief Loyinmi on the land, The land in dispute has been in the possession of Fanika family for two hundred years.” [Emphasis theirs].
At page 9, lines 14 – 15 of the record, PW2 testified inter alia:
‘The first plaintiff has been on the farmland about fifty years ago.”
At page 10, lines 25 – 26 of the record, the PW3 gave evidence saying:
“I have known the first plaintiff to be the owner of the farmland 29 years ago.”
The learned counsel for the respondents also referred to the evidence of PW4 and PW5 respectively to the effect that they have been on the land for 26 and over 30 years respectively. See page 11, lines 21 – 26 and page 12, lines 33 – 36 of the record. Counsel contended that all these pieces of evidence from the respondents’ witnesses reveal nothing but a root of title based on long possession.
It was counsel’s further contention that where parties claim to be in possession of the land in dispute, possession is declared in favour of the party that proves better title to the land. Thus, the respondents’ evidence having been preferred to that of the appellant, the respondents are presumed to be in possession. See Omotayo vs. Cooperative Supply Association (2011) Vol. 202 LRCN 134 at 161 EE-JJ where the Supreme Court held as follows:
“It is now firmly established that where two persons claim to be in possession of land in dispute, the law ascribes possession to the one with a better title.”
Learned counsel contended that the finding of the lower court that the respondents based their root of title to the land in dispute on long possession is aptly supported by cogent, convincing and credible evidence on record and as such cannot be disturbed or interfered with by this court.
Counsel while relying on the authorities of Adawon vs. Asogba (2008) All FWLR (Pt. 420) 742; and Ogundele & Anor vs. Agiri & Anor (2010) Vol. 180 LRCN 138, recalled that appellate courts sitting over appeals from judgments of customary courts are enjoined to ascertain from the entire record of proceedings in such customary courts to find out if their decisions had been arrived at by positive application of common sense rather than strict adherence to the application of substantive or procedural rules and or principles. Counsel urged on us to resolve the issue in favour of the respondents, dismiss the appeal on grounds 5 and 6 to which the issue relates and affirm the judgment of the lower court.
RESOLUTION OF ISSUE (II) TWO
The respondents’ first relief as endorsed on their plaint at the trial customary court reads thus:
1. A court declaration that the plaintiffs by virtue of being the descendants of late Chief Loyinmi Fanika are the ones entitled to the Customary Right of Occupancy over a coca farmland situate and being at Okepu Road via Ondo in Ondo State…” (Emphasis mine).
Looking at the above, it is obvious that the evidence of long possession as adduced at the trial by the respondents, stems primarily from their claim of descent from late Chief Loyinmi Fanika. The respondents’ witnesses all testified that the said late Chief Loyinmi Fanika was the original owner of the land in dispute. On the part of the appellant, they equally laid claim to the land in dispute and gave evidence of being in possession via their descent from Pa Ayo Fayinminu.
There is therefore a rival claim of possessory right on both sides with each party tracing his root of title to his predecessor. The law in this event is that when a party traces his root of title to another person and the root of title is challenged, for the party making the claim to succeed he must not only establish his own title, he must also establish the title of his predecessor by credible evidence. See Olohun vs. Adeyoju (2000) FWLR (Pt. 24) 1355 at 1388 where Uwaifo, JSC had this to say:
“The law is trite that it is not enough for a plaintiff seeking a declaration of title to land to lead evidence to trace his title to a particular person. He must go beyond that to establish, by credible evidence the root of that person’s title otherwise title will not be declared in him.” [Emphasis mine].
Viewed from another angle, where a situation arises and two parties maintain competing claims to the land in question and both rely on acts of ownership and actual possession, the law will ascribe actual possession to the party who proves er better title to the land and the other will be regarded as a trespasser.
Now, in the instant case, the respondents as plaintiffs at the trial Customary Court are saddled with the evidential burden of proving their claim by credible evidence in line with their plaint. Where they fail to do so the case will be dismissed. The respondents are in the circumstances required to prove the title of their ancestor Chief Loyinmi Fanika failing which they will lose their claim. This burden placed on the respondents is to be discharged based on the strength of their evidence as the weakness of the appellant’s case cannot avail them. See the authorities of Elufisoye vs. Alabetutu (1968) NMLR 298; Yusuf vs. Idiatu (2007) 4 SCNJ 77 at 88; and Balogun vs. Akanji (?005) 10 NWLR (Pt.933) 394.
It follows that the respondents cannot succeed in their claim for title just by pleading and leading evidence to the effect that they have been in long possession by virtue of their coming unto the land on the back of their late ancestor Chief Loyinmi Fanlka. They have to go further and establish how Loyinmi Fanika came about the land. This is to say that the title of late Chief Loyinmi Fanika has to be settled by credible evidence in order for the respondents as his successors to ground their claim or root of title. Incidentally, there is no evidence whatsoever on record showing how the late Chief Loyinmi Fanika came to own the land in dispute.
It is clearly spelt out in Onwugbufor vs. Okoye (1996) 1 NWLR (Pt. 424) 252 at 280 that where both parties claim to be in possession of a parcel of land in dispute and the plaintiff traced his title to a particular person, to succeed he must prove:
a) The founder of the land;
b) How he founded the land; and
c) The particulars of the intervening owners from the founder to the plaintiff.
These three ingredients must all be proved before the plaintiff can be said to have established his title to the land.
The respondents herein who are plaintiffs at the trial Customary Court failed to lead any evidence to show how late Chief Loyinn,i Fanika who they claim to be the owner of the land in dispute came to own same.
In Suara Yusufu vs. Adegoke & Anor. (2007) 30 NSCQR 269 per Aderemi, JSC. at 296 had this to say:
“It should not be forgotten that, in the instant case, the plaintiffs/respondents claimed a declaration of title based on GRANT from Aleshinloye to Odetunde under Yoruba Native Law and Custom. Unless the origin of their title is valid, that is, it was established by credible evidence, even if there was copious evidence of possession, the length of possession does not ripen invalid title to a valid ownership title. This is so because claim for declaration of title is not founded on ownership by prescription under native law and custom and it wilt never be.”
With my finding that there is no evidence whatsoever establishing the title of their ancestor late Chief Layonmi Fanika, the lower court with all I due respect was in error when it affirmed the judgment of the trial Customary Court on the basis of evidence of long possession without more. The lower court should have gone a step further to ascertain how Chief Loyinmi Fanika founded the land and the intervening owners if any until the respondents came unto the said land. Issue two is therefore in view of this lacunae resolved in favour of the appellant and against the respondents.
ISSUE (III) THREE
Whether the lower court was right when it agreed with the trial customary court that it was essential to visit locus in quo in this case so as to determine the boundaries of the land in dispute. (Grounds 7 and 8).
In this regard, the learned counsel for the appellant recalled that the trial Customary Court was unable to visit the locus in quo “with particular reference to the boundaries” because the appellant did not show up for the visit after the trial customary court had excused the appellant’s counsel from the visit. He opined that the trial customary court made an issue of the inability to visit the locus in its judgment. The learned counsel referred to the lower court’s holding that:
“From the testimonies of PW3 and PW4 indicating the boundaries of the land in dispute slightly different from that stated in the claim and that of PW5 stating the correct description, the tone was no doubt set for a journey to the locus to determine the physical condition of the land and bring to the fore the evidence of both parties without any bias.” [See page 79, lines 18 – 23 of the record].
Counsel submitted on this that the purpose of a visit to the locus is not to substitute the eye for the ear. Rather the purpose is to give the court an opportunity to see for itself the features on the land where there is dispute as to the features and physical condition of the land in dispute. He referred to Ipinlaye vs. Olukotun (1996) 6 SCNJ 74 and submitted that there is no dispute in this case as to the features on the land in dispute as both parties are in agreement that the land in dispute is a farmland that contains cocoa trees, kolanut trees, palm trees and other crops.
Learned counsel also contended that there is no conflict in the evidence adduced by parties on location and boundaries of the land in dispute. He further submitted that from the reason given by the lower court, like the customary court on the need to visit the locus, it is apparent that the purpose of the visit was more to resolve the glaring contradictions in the evidence of boundaries of the land in dispute adduced by the respondents. It was against this backdrop that the learned counsel for the appellant opined that the resolution of the issue in dispute in this case cannot be effected by a visit to locus as the respondents failed to adduce credible evidence of their title. A visit to the locus would not have cured the respondents’ inconclusive evidence of title of its defect. He then urged on us to resolve the issue in favour of the appellant.
On the failed visit to the locus which was occasioned by the absence of the appellant, the learned counsel for the respondents referred to the findings of the trial customary court as contained at page 35, lines 30 – 33 where it held:
“If the defendant has got nothing to hide, he should have followed the court and the other party to the locus, after his counsel has permitted him to do so as he himself was not ready to visit the locus for personal reasons.”
In reaction to the above findings of the trial customary court, the appellate lower court; at page 81, lines 25 – 27 of the record of appeal held thus:
“Again, it is very difficult to fault this observation and conclusion of the trial court regarding the action of the defendant/appellant in avoiding a visit to the locus.”
Learned counsel for the respondent submitted that the concurrent conclusions and findings of the two lower courts as highlighted above are unassailable consequent upon which he urged on us not to interfere with them. He recalled the principle of law that it is the duty of the trial court who saw and heard the witnesses that can assess their credibility. See A.T.E.C. Ltd. vs. Military Gov. of Ogun State (2009) Vol. 175 LRCN 23 at 67 F – P where the Supreme Court stated that:
“It is a principle of law that an appellate court will not interfere with the findings of a trial Judge as a matter of routine or by way of parading appellate power. On the contrary, an appellate court can only interfere…… where such findings are shown to be unreasonable…….. The reason is that while the trial Judge watches the demeanour of the witness, an appellate court has no such opportunity.”
[See also Okeowo vs. A.G. Ogun State (2011) Vol. 194 LRCN 117 at 125 K – P. With this the learned counsel for the respondents urged the court to resolve the issue in favour of the respondents and against the appellant, dismiss the appeal on grounds 7 and 8 of the Notice of Appeal from where the issue was distilled and affirm the judgment of the lower court.
RESOLUTION OF ISSUE (III) THREE
Now as rightly submitted by the learned counsel for the appellant, the purpose of a visit to locus is not to substitute the eye for the ear; instead the purpose is to allow the court an opportunity to see for itself the features on the land where there is dispute as to the features and or physical condition of the land in dispute. Thus, in Iplnlaye vs. Olukotun (supra) at 93-94, the revered Iguh, JSC made the following observation:
“Indeed in Nwizuk case, where there was conflicting evidence on the issue whether a house was damaged as a result of seismic operations or not, this court had cause to observe as follows:
“This, in our view, is a case where the learned trial Judge ought to have visited the locus in quo in view of the conflict in the evidence of the parties. We are satisfied that on the conflict of the evidence before him, it was necessary that the conflicting issues should have been resolved by a visit to the scene. The failure of the learned Judge to do so in this case has caused to be undecided the issue as to whether these buildings were ever damaged at all.”
There can be no room for any doubt, therefore, that a trial court will be perfectly in order where, in the face of conflicts in the evidence of the parties, it decides suo motu to visit the locus in quo with a view to clearing any doubts or ambiguities that may arise in the evidence or to resolve any conflict in the evidence as to physical features as aforesaid.”
As I noted earlier while dealing with issue one, though I spotted some discrepancies in the evidence of the respondents with regards to the location and boundary neighbours of the land in dispute but I found them to be so minor as not to have left the parties in doubt of the land in dispute. I found that in spite of the failed scheduled visit to the locus both parties were still ad idem as to the identity and location of the land in dispute. It was therefore immaterial that the planned visit fell through. There was thus no need for the visit since there was no dispute as to the features on the land. I am saying that visit or no visit, the parties know the land in dispute. A visit to the said land could not have cured the respondents’ inconclusive evidence of title of its defect. The lower court in this event was not right when it agreed with the trial customary court that it was essential to visit the locus in quo in order to determine the boundaries or physical condition of the land in dispute. Accordingly issue (iii) three is determined in favour of the appellant and against the respondents.
ISSUE (IV) FOUR
Whether the lower court property evaluated the evidence on record in this case. (Grounds l and 9).
The learned counsel for the appellant referred to the finding of the lower court that:
“Clearly, the case of the plaintiffs/respondents as regard proof of ownership is ordinarily to be preferred to that of the defendant/appellant and this the trial court did. There is therefore no reason why this court should interfere with the evaluation of the evidence and final decision of the lower court.”
He argued that the finding is unsupportable by the totality of evidence on record. Learned counsel touched on the lower court’s evaluation of the evidence of long possession of the respondents on the one hand and evidence of traditional history of the appellant. Counsel submitted that the respondents’ evidence is unreliable as it is full of inconsistencies and contradictions.
Learned counsel again submitted that the lower court was wrong when it came to the conclusion that:
“…. the defendant/appellant himself testified on traditional history, but unfortunately, his other witness, DW2, had nothing to say on the title of the defendant/appellant to the land in dispute, as he admitted that he did not know even the boundaries of the land in dispute;”
and thereafter went on to accept the evidence of the respondents on title. Counsel opined that had his Lordship adverted his mind to the evidence of title proferred by the appellant and the supporting evidence of possession: by DW1, a son of the appellant’s ancestors’ i customary tenant on the land in dispute, his Lordship would have come to a different conclusion.
It was counsel’s further submission that the failure of the lower court to visit the locus occasioned as it were by the failure of the appellant to turn up for the exercise, cannot be presumed in law against the said appellant, proper regard being given to the evidence adduced by the respondents on boundaries and their title to the land in dispute. Submits that the improper evaluation of evidence by the lower court has occasioned a miscarriage of justice to the appellant.
That since ‘the finding of fact of the two lower courts were not based on the credibility of witnesses, this court can interfere, more so as the two findings are perverse. See Umesie vs. Onuaguluchi (1995) 12 SCNJ 120 at 134 – 135; Eigbjale vs. Oke & Ors. (1996) 5 SCNJ; and The State vs. Ajie {2000) FWLR (Pt. 16) 2831 at 2843.
Finally the learned counsel for the appellant contended that this case falls within the permitted grounds of intervention upon which he urged on us to resolve the issue in favour of the appellant and allow the appeal.
Regarding this last issue, the learned counsel on behalf of the respondents submits that the appellant has not shown that the findings and conclusions of the two lower courts indicating their preference to the case of the respondents’ proof of title to that of the appellant, has occasioned a miscarriage of justice. He argued further that apart from clear evidence on record to support the concurrent findings under focus, there are further pieces of evidence on record that shows the appellant’s evidence could not be believed. He cited page 31, lines 28 – 31 and page 35, lines 16 – 18 of the record of appeal where the court while reviewing the appellant’s case observed: “He said he did not know the original owner of Okenla and that he has never seen plaintiffs (sic) witnesses before but under cross examination, he admitted seeing them whenever they were going to their farms.”
Counsel contends that the appellant’s evidence supported the respondents’ evidence that the appellant was once arrested and tried in relation to an offence relating to her trespass on the land. Submits that the lies and the evidence of the appellant supporting the fact that he was arrested on the land goes to show that the respondents’ case is more probable and the two lower courts cannot be blamed for their conclusions and findings.
Learned counsel forged on by submitting that the appellant’s submission to the effect that the evidence of long possession relied upon by the respondents is unreliable and full of inconsistencies and contradictions hold no water. Counsel finally urged that the concurrent findings of the two lower courts as highlighted by him as well as the convincing evidence on record which are unassailable are not to be interfered with by this court. He called on us to resolve this issue in favour of the respondents and against the appellant, dismiss the appeal, affirm the judgment of the lower appellate court and award heavy cost against the appellant.
RESOLUTION OF ISSUE (IV) FOUR
It is totally correct to say that superior courts do not make the habit of interfering with concurrent findings of two lower courts, except where such findings are shown to be perverse or to have occasioned a miscarriage of justice or to be unsupportable by evidence on record. See Taiwo vs. Adegboro & Ors. (2011) 5 SCNJ 125; Akpaji vs. Udemba (2009) 176 LRCN 97 at 1132; and Posu & Anor. vs. The State (2011) 193 LRCN 52 at 75U.
Again it is within the purview of the trial court who saw and heard the witnesses to assess their credibility. See A.T.E.C. Ltd. Vs. Military Gov. of Ogun State (2009) 175 LRCN 23 at 67 F – P, where the Supreme Court, held as follows:
“It is a principle of law that an appellate court will not interfere with the findings of a trial Judge as a matter of routine or by v.uay of parading appellate power. On the contrary, an appellate court can only interfere… where such findings are shown to be unreasonable………The reason is that while the trial Judge watches the demeanour of the witness, an appellate court has not such opportunity.”
See also Okeowo vs. A.G. Ogun State (2011) 194 LRCN 117 at 125KP.
Obviously the learned lower court jettisoned the inconclusive evidence of traditional history of the respondents regarding their claim of title by long possession of the land in dispute. The bits and pieces of inconsistencies and contradictions in their evidence notwithstanding, the respondents as I have earlier noted whilst claiming possessory right, failed to prove the basic requirement of how their ancestor Loyinmi Fanika through whom they claim title, came on the rand himself. In other words the respondents as the plaintiffs at the trial customary court failed to establish their root of title or a better root of title given that both parties were relying on long possession of the land in dispute. Upon the failure of the respondents to establish how Chief Loyinrni Fanika, their root of title came on the land they cannot be ascribed the possessory right to the said land in dispute. On the authority of Mogaji vs. Cadbury (Nig.) Ltd. (supra), the evidence as fed by both parties preponderates better in favour of the appellant as opposed to the respondents.
There is obviously an improper evaluation of evidence by the lower court which by its nature has occasioned a miscarriage of justice to the appellant and which in effect calls for the intervention of this court. Moreover, the findings of fact of the two lower courts are not based on the credibility or otherwise of the witnesses. Rather they were based on the weight attachable to the credible evidence as led by the parties. Having satisfied myself that the findings of the two lower courts are perverse and have occasioned injustice to the appellant, it then follows that we ought to intervene in the interest of justice. Accordingly, issue (iv) four is resolved in favour of the appellant and against the respondents.
Before ending this appeal I feel obliged by way of an obiter dictum to make an observation on an issue raised by the learned counsel for the appellant touching on his personality. The learned counsel had stated at page 17, last paragraph of the respondents’ brief of argument that I he could not conclude the appeal without registering his exception to the lower court’s “uncharitable castigation of the appellant’s counsel I who sought and obtained the permission of the learned trial customary court to stay away from the visit to the locus.” To buttress this contention, the learned counsel referred the court to page 19, lines 20 – 35 and page 20, lines 1 – 9 of the record of proceedings.
I feel the necessity to reproduce the relevant portions of the proceedings of the trial customary court holden on Tuesday the 17th day of April, 2008 which the learned counsel found reprehensible. They read:
“….Defence says he has two reasons to give for refusing to visit the locus in quo. Firstly the purpose of visiting locus is to clear ambiguity as to features on the land in dispute. In this matter both parties in the land in dispute agreed that it is farmland and with this, it is not necessary to visit the locus. Secondly he says for personal reasons and experience the court should excuse him.
Reply by plaintiffs counsel says the visit to locus is a discretionary power and that of the parties in the case, he says on the plaintiffs’ part they are ready to visit the locus. Since the defence counsel has said he is not willing to go but his client is ready to go the court should rule that the visit should take place as the absence of the defence counsel will not jeopardize the visit.
RULING
The court has listened to both counsel in this case in respect of an address as to visit to the locus in quo. The Customary Court’s law as regard inspection to a locus in quo (page 21) paragraphs 1.64 says a Customary Court may on its own or on the application of any of the parties to a case inspect any property which is not moveable or which cannot be conveniently brought into the court if such inspection is necessary to enable them come to a just decision’ The court on its own had formed an opinion to visit the locus with particular reference to the boundaries even before the plaintiffs’ counsel made an oral application to that effect. It is now the court’s decision to have the farm visited with parties since there was no objection by the defendant himself whose counsel is in support. The visit to the locus is hereby adjourned to 21/04/08 at 1p.m. and the address to follow thereafter…”
See again page 19, lines 19 – 36 and page 20, lines 1 – 9 of the record of appeal.
I have taken to reproduce the foregoing excerpts because I went through it severally and yet was unable to pick the portion(s) that irked the learned counsel for the appellant. lf at all the trial Customary Court expressed any reservation, it was directed at the learned counsel’s client (defendant/appellant) who in spite of his counsel’s word to the court that the defendant was going to be present for the visit to the locus, still absented himself on the two occasions scheduled for the said visit and without excuse too. See page 22 particularly lines 9 – 20 of the record. There is nothing in the portions reproduced or even in the judgment of the trial Customary Court as a whole that seems to be derogatory of the learned counsel for the appellant. On the contrary, the seeming indictment therein was directed at the appellant himself, who in spite of the assurance of his counsel to the trial Customary Court that the said appellant was going to be available for the visit to the locus, he ended up not being present on the two occasions and without excuse from the lower trial court.
I cannot help but ask the learned counsel for the appellant to rise above his sensitivity as the ruling of the learned trial Customary Court on the issue is devoid of bad faith but rather the same was made in line with the demand of the i law. I have really found nothing in the proceedings/ruling to suggest that the learned trial Customary Court was in any way castigating the learned counsel and I so hold.
In summation of the appeal, I hold that despite the minor discrepancies in the evidence of boundary as adduced by ‘the respondents, they were not enough as to render the identity of the land in dispute unidentifiable and or unascertainable. The lower courts were not therefore wrong in law to have relied on the said evidence of boundary as adduced by the said respondents.
However, the lower courts ought not to have relied only on the respondents’ evidence of long possession in giving title to them since both sides were claiming long possession. Rather the trial court ought to have gone a step further to determine who between the two sides led evidence of better or superior title. The onus of proof of better title was on the respondents as plaintiffs at the trial Customary Court but they failed to discharge same. The respondents’ claim in the event ought to have been dismissed by the lower courts.
With or without visit to the locus in quo, the land the subject of dispute was known to the parties. Thus, the foiled visit to the locus in quo ordinarily ought not to have weighed heavily on the mind of the lower court. Indeed the lower court failed to properly evaluate the evidence led before the trial Customary Court hence the miscarriage of justice to the appellant.
On the whole and given my resolutions of issue one in favour of the respondents while issues two, three and four are against them, the claims of the respondents ought to be dismissed and they are so dismissed.
The appeal in effect succeeds. Accordingly, the judgment of the High Court of Ondo State sitting at Ondo and delivered 12th October, 2010 is hereby set aside.
Other Citations: (2004)LCN/1553(CA)
