Mogaji Lasisi Atanda & Ors Vs Salami Ajani & Ors (1988)

LawGlobal-Hub Lead Judgment Report

CRAIG, J.S.C. 

The plaintiffs claims in the High Court of Oyo State, holden at Ibadan were for: 1. Declaration of title according to Native Law and Custom to a piece or parcel of land situate at Isale Oje, Ibadan in Oyo State of Nigeria the boundaries of which shall be clearly shown in a survey plan to be filed in the action. 2. N 250.00 being general damages for trespass committed by the defendants, their servants or/and agents on the said land on or about July, 1972. 3. Injunction to restrain the defendants, their servant or/and agents from entering or committing further trespass on the said land.”

Pleadings were filed and exchanged, and at the end of that exercise, the matter proceeded to trial before Ayorinde, J. After hearing evidence, the learned Judge held that both parties had a ‘semblance of title’ to the land surrounding the land in dispute, but he dismissed the plaintiffs claims because they have not adduced convincing evidence of ownership to the whole area of land in dispute to the exclusion of others…..” The trial Judge also held that the plaintiffs had failed to prove the identity of the land in dispute with certainty. The plaintiffs were dissatisfied with that judgment and appealed to the Court of Appeal, Ibadan.

That court, after hearing arguments dismissed the appeal and affirmed the judgment of the trial court. This is a further appeal against the decision of the lower court. In this Court, the plaintiffs/appellants have lodged five original grounds of appeal, which I find to be extremely prolix, and I do not intend to reproduce them. However, these grounds appear to have been admirably incorporated in the five additional grounds of appeal which were filed and argued with the leave of this Honourable court. Those grounds are much more succinct and are as follows: “(1)   The learned Justice of Appeal who delivered the lead judgment concurred in by the other Justices of the Court of Appeal, erred in law by holding at page 149 lines 3 to 6 of the Record that ‘the respondents joined issue with the appellants on the question of possession vide evidence of 1st D.W. and D.W.3,’ and thus came to a wrong decision in the case.

Particulars of Error: (a)  It is the principle of the rules of practice and procedure that issues are joined on the pleadings and not on the evidence adduced on behalf of the Defendants. The formulation of issues by a trial court, not based on the pleadings filed by the parties in a case may invalidate the judgment as laid down in the case of Veronica Graham & Ors. p. Lawrence Esumai & Ors. (1984)11 S.C. 123.

(b) The Appellants having established that their title originated from a rightful owner, namely, Balogun Oderinlo, the question of possession ceases to be a relevant issue in the case and it is a relevant issue only where the evidence of ownership is inconclusive as laid down in the case of Mumuni Abdulai v. Ramotu Manue (1944) 10 WACA 172. 2. The said learned Justices of Appeal erred in law when, without or any due consideration, they upheld the learned trial Judges dismissal of the Plaintiffs claims after the learned trial Judge had found, as admitted by the Defendants witnesses that the original owner of the land in dispute was Balogun Oderinlo from whom they, the Appellants, claimed to have derived their title to the land as opposed to Delesolu from whom the Respondents claimed to have derived their own title. Particulars of Error:

(a) The learned Justices of Appeal merely recited the arguments of the Appellants at Pages 146 to 148 of the Record and summarily dismissed them without due consideration. 3. The learned Justices of Appeal erred in law in holding at Page 148 line 30 to 34 of the Record thus:- “having failed to prove title by grant to the particular land in dispute, their other evidence being inconclusive and lacking, the law throws upon them the burden of proving acts of ownership.”  whereas in a case of this nature in which the Appellants established their Succession to the land through an admitted lawful set-tier-owner of the land. The onus lay on the Respondents to dislodge that ownership by cogent evidence as laid down in Ricketts v. Shote (1960) L.L.R. 201 and Mahinmi v. Ladejobi (1960) L.L.R.233.

4.The learned Justices of Appeal erred in law when they held at Page 151 lines 6 to 12 of the Record that the Appellants failed to discharge the onus of proof on them by reference to the case of Kodilinye v. Odu 2 W.A.C.A. 336 when in law the principle enunciated in that case is not of relevance in this case. Particulars of Error: At Page 146 line 22 to Page 148 line 28 of the Record, the learned Justice set down the arguments of the Appellants as follows:- “The respondents in paragraph 5 of their statement of defence averred that the land in dispute forms part of the land granted by Delesolu to Bilekanle, the ancestor of the respondents but 1st D.W. (i.e. 2nd respondent) under cross-examination admitted that Oderinlo granted land including land in dispute to Delesolu originally.

That being so, 1st respondent has failed to trace his radical title to Delesolu. In other words, the respondents by their tacit admission that Balogun Oderinlo was the radical owner of the land in dispute from whom they obtained their grant.” The learned Justices of Appeal erroneously dismissed these and other arguments on the ground of the Plaintiffs ‘failure to adduce convincing evidence of exclusive possession of the land in dispute’ contrary to the decisions in Mumuni Abdulai v. Ramotu Manue (1944)10 W.A.C.A. 172 and Ricketts v. Shote (1960) L.L.R. 201.

5. The learned Justices of Appeal erred in dismissing the appeal on the ground that ‘there was none to choose between the Appellants as well as the Respondents case’ as per Page 151 lines 11 to 12 of the Record, and the learned trial Judge having found that the original settler-owner of the land including the land in dispute was Balogun Oderinlo from whom the Appellants derived their title, there was no room for holding that there was none to choose between the Appellants case and the Respondents case.” In his brief of arguments, Mr. Kehinde Sofola. S.A.N., has set out the following issues for determination:

“(1) Whether the appellants are not entitled to succeed in their claim for declaration of title to the piece of land in dispute and to the other reliefs claimed, the learned trial Judge having found that the appellants proved their radical root of title in Balogun Oderinlo admittedly the first settler on the land, whilst the defendants failed to establish their root of title.  

“(2) Whether the learned trial Judge and the Court of Appeal were right to have permitted the respondents to found their claim to title to the piece of land On a grant from Balogun Oderinlo whereas in their pleadings they had alleged that they derived their title from Delesolu, and denied that the said Balogun Oderinlo was the settler on the land. (3)Whether having found that the appellants derived their title from Balogun Oderinlo, it was nevertheless necessary for the appellants to establish evidence of recent user by them.

(4)The appellants having established that their title to the piece of land originated from the first settler and the rightful owner, Balogun Oderinlo, whether the respondents discharged the onus of proof laid upon them by law to dislodge the plaintiffs claim. (5) Whether the Court of Appeal was right to have held that the respondents join issues with the appellants on the question of possession and whether that question nevertheless remains material having regard to the evidence of D.W.1 and D.W.3, the respondents having admitted that the person from whom the appellants derived their title to the piece of land, namely, Balogun Oderinlo, was the first settler on the land contrary to the respondents pleading.” In his own brief, Mr Aiyedun for the respondents has put the issues differently.

In his view, the real issues are:- (i) Whether the Court of Appeal was wrong in affirming the decision of the learned trial Judge upon a calm review and meticulous evaluation of the evidence before the court. (ii)Whether such findings 6f fact can be lightly set aside by the supreme Court more so as there have been such concurrent findings by the two lower courts. (iii) Whether the appellants are entitled to succeed in their claim for declaration of title when their case supported that of the respondents as per the admission of the appellants key witness, Salami Oyegoke Oderinlo (P.W.6). (iv) Whether in law the appellants ought to have succeeded not on the strength of their own case but on the weakness of the respondents case (if the case of the respondents was weak).” Although the issues formulated by both parties are differently worded, it is quite clear that the appeal herein turns on the facts and the evaluation of these facts. It is not surprising therefore that the respondents counsel was (i quick to point out this fact and in his oral arguments, he emphasised the point that there has been a concurrent finding of facts by the two lower courts; counsel therefore urged this court not to disturb those findings.

The Supreme Court has in a number of cases laid down the principles governing a review of the facts by an appellate court. Broadly speaking it is the primary function of a trial court, which saw and heard the witnesses to assess the credibility of those witnesses and to believe or disbelieve any of them. See Chinwedu v. Mbamali (1980) 3-4 S.C. 31 at page 75 per Obaseki, J.S.C.; Enang v. Adu (1981)11-12 S.C. 25 at 38 per Nnamani, J.S.C. In this respect, an appellate court is only left with a duty to see: (a) Whether there was evidence to support the findings and/or the decision of the trial court. (b) Whether the trial court has made a correct assessment of the evidence before it. (c) Whether the trial court has wrongly accepted or rejected any evidence tendered at the trial.        or (d) Whether there has been an erroneous appraisal of facts leading to erroneous conclusions in the case. See A. Anyaoke v. Dr. F. Adi (1986) 3 N.W.L.R. 731 at 742 Mogaji & Ors. v. Odofin & Ors. (1978)4 S.C. 91   All that this means is that an appellate court will not interfere with the findings of a trial court unless it is obvious that that court has not made good use of the unique advantage which it has of seeing and hearing the witnesses before it. See Fashanu v. Adekoya (1974)1 All N.L.R. 35; Woluchem v. S. Gumi (1981) 5 S.C. 319 The main question in this appeal will be to ascertain whether there has been a violation of any of the principles stated above.

The appellants counsel has attacked the findings of fact made by the trial Judge. First, it was submitted that the findings made were contrary to the trend of accepted evidence, and secondly that the trial Judge made no findings at all on the principal issue in the case, i.e. the issue as to which party had established title to the land in dispute. I shall now consider the relevant evidence in the case so as to find out whether there is any substance in the appellants complaint.

In their statement of claim, the plaintiffs based their claim to the land on a grant by Balogun Oderinlo. The relevant paragraphs of the pleadings are as follows:- “6. The land in dispute owned by the plaintiffs is situate at Adenko Compound, Isale Oje, Ibadan and is the area verged green in survey plan No. AD 96(73 drawn by Licensed Surveyor, M.A. Adeoti, Esq., on 23/5(73 and duly countersigned by the Surveyor General on 6/8/73 and is attached to this statement of claim.

7. During the reign of Bashorun Oluyole, Balogun Oderinlo granted absolutely to Adenko Aje Ojoku a large portion of land at Isale Oje, Ibadan embracing (1) the area verged yellow (2) the area verged blue and (3) the area verged red including the land in dispute verged green in survey plan AD 96/73. 8. The said Adenko Aje Ojoku, plaintiffs ancestor, was a warrior under Balogun Oderinlo and lived with Balogun Oderinlo at Mapo, Ibadan fill the time he was granted the said parcel of land at Isale Oje.

9. The said Adenko Aje Ojoku was also Elegun Sonponna to Balogun Oderinlo and as worshippers of Orisa Shonponna, buried those who died of smallpox and confiscated their properties. 10. The land given to Adenko by Oderinlo was a portion of a large parcel of land originally settled on by Oderinlo and the land given to Adenko stretches to Ajedi Stream because the bank of the stream was used to bury those who died

Other Citation: (1988) LCN/2390(SC)