Mr. Ajani Oyediran Oyeniyi V. Mrs. Ruth Adeleke & Anor. (2008)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J. C. A.

This is an appeal against the judgment of Hosn. Justice P. O. Aderemi, (as he then was) a decision of the Ogbomoso Division of the Oyo State High Court in Suit No. HOG/61/88 delivered on the 14th June, 1990.

The original Appellant in this appeal, Ajani Oyediran Oyeniyi had as Plaintiff claimed against the Respondents, the Defendants at the court below, per paragraph 24 of the former’s statement of claim as follows:-

“(1) Declaration that the Plaintiff is entitled to right of Occupancy to that piece or parcel of land situate, lying and being at Ajani Oyediran Oyeniyi family land at Isoko Area, Ogbomoso, verged Yellow in Plan NO.OB692A dated 25th day of January, 1989 and drawn by Bamigbose Licensed Surveyor;

(2) Two Thousand Naira (N2,000) damage jointly and severally against the defendants for trespass committed by the defendants on various occasions in September 1988 by going on the Plaintiffs piece or parcel of land situate at AJani Oyediran Family land at Isoko Area, Ogbomoso, by molding cement blocks thereon and erecting or constructing a building foundation thereon.

The trespass still continues;

(3) Injunction restraining the defendants, their agents, servants, privies, assigns and or any one claiming through them from committing any further acts of trespass on the said land”.

Pleadings were ordered, filed and exchanged. The Plaintiff gave evidence and called two other formal witnesses in proof of his case. These were Pw1, the Surveyor and Pw2, a Principal Registrar of the Ogbomoso Customary Court. The 2nd defendant testified personally. The defendants also called two other witnesses in opposition to plaintiff’s case. At the end of trial, Counsel on both sides addressed the court. In a well considered judgment, the trial court in dismissing plaintiff’s entire claims concluded thus:-

“In the present case, there is no shred of evidence that the Oyeniyi’s family has parted with its corporate ownership of the land in dispute in favour of the Plaintiff. It will therefore be a wrong exercise of the court’s discretion, having regard to the state of the pleadings and evidence to grant the first leg of the claims which is hereby dismissed.

“As to the second leg of the claims there is no evidence that the Plaintiff is or has been in physical possession of the land in dispute in the exercise of his right only as a joint owner of the land nor is there any evidence that he was allotted the land in dispute by the family; he has therefore not satisfied the requirements which will enable me enter judgment in his favour on that second leg.

As an order for injunction is only a necessary instrument to prevent repetition of a wrong complained of and since I have not found any wrong committed to warrant my acceding to the prayer contained in the second leg, there is no basis for granting an order of injunction.

In the final analysis, the plaintiff having failed to proved his case as formulated in his statement of claim deserved no other treatment than a dismissal of his claims and therefore the claims are dismissed in their entirety”.

The original plaintiff being dissatisfied with the foregoing decision of the trial court appealed against same on an amended notice containing six grounds. On the death of the original Appellant and following the order of this court dated 15th October 1997, he was submitted by the present Appellant, Sunday Oluatunde Oyeniyi. The plaintiff as substituted and the Defendant, the parties at the lower court, will for this appeal be referred to as Appellant and Respondent respectively.

Briefs have, in keeping with the rules of this court, been filed and exchanged. Parties have adopted and relied on these briefs as their arguments. They proffered no further oral arguments at the hearing of the appeal.

At pages 5-6, paragraphs 3.01-3.04, of the Appellant’s brief, four issues have been submitted for the determination of the appeal. The issues read:-

“3.01. Whether the Learned Trial Judge was Justified In dismissing the Plaintiff/Appellant’s claim for declaration of title when he has found that the Defendants/Respondents evidence was at variance with their pleadings;

3.02 Whether the Trial Judge was right in dismissing the Plaintiffs claim for trespass especially when there is evidence that the Respondent cannot explain how they got to the land;

3.03 Whether the Trial Judge was right in holding that the Respondents are excused from trespass by virtue of a purchase from Oyeniyi family under native law and custom;

3.03 Whether the Trial Judge ought not to have non-suited the parties in view of evidence before the court”.

The three issues formulated in paragraph 4 of the Respondents’ brief considered to have arisen for the determination of the appeal are:-

(i) Whether from the totality of the case of the parties as presented before the honourable court below, the court was right in dismissing the plaintiffs claim in its entirety.

(ii) Whether the use to which learned trial judge made of Ex. B in the proceeding was improper and same did occasion a miscarriage of Justice.

(iii) Whether an order of non-suit was just and proper in the circumstance of this case before the lower court.

Before considering the arguments of the two sides pertaining to the issues they formulated for the determination of the appeal, it seems necessary to consider Respondents’ preliminary objection to the competence of grounds 1, 2, 3 and 4 in the Appellant’s notice of appeal. The grounds, the issues as well as the arguments in the entire appeal for the reasons adumbrated in the Respondents’ brief, being incompetent should be struck out.

Learned Counsel to the Respondent had argued in the main that Appellant’s grounds 1, 2, 3 and 4 are incompetent because they had alleged errors in law and misdirection on the part of the Learned Judge at the same time. The grounds have fallen in breach of Order 3 Rule 2 (2) which allows a ground of appeal to allege either misdirection or error in law but not the two at the same time. It is submitted that a ground of appeal which allege misdirection differs from and is mutually exclusive of that which alleges error in law. Misdirection relates to the court’s statement on the party’s case while an error relates to the determination by the court. Counsel relied inter alia on OYERADEJO Vs. OLANIYI (2000) FWLR (Pt. 5) 829 at 845; NWACHIKE Vs. IBEKWE (1987) 4 NWLR (Pt. 67) 718; LABIYI Vs. ANRETIOLA (1992) 8 NWLR (Pt. 258) 319; AMACHI Vs. ORISAKWE (1997) 7 NWLR (Pt. 511); AKPAN Vs. OTONG (1996) 10 NWLR (Pt. 476) 108 and OLADOYE Vs. ADMINISTRATOR, OSUN STATE (1996) 10 NWLR (Pt. 476) 38 and urged that the grounds be struck out. Counsel further contended that since these incompetent grounds have been argued along with the competent grounds, all the arguments based on the totality of the grounds are equally incompetent. He relied on the decision in OYEBADE.JO Vs. OLANIYI supra in submitting that the issues and arguments predicated on the incompetent grounds, being incompetent too, be struck out as well.

Grounds 1, 2, 3 and 4 in Appellant’s notice of appeal alleged by the Respondents to be incompetent are hereunder reproduced for ease of reference:-

“1. The Learned Trial Judge erred in law and therefore came to a wrong decision which caused a miscarriage of justice when he dismissed the Plaintiffs claim.

Particulars of Error;

(i) When the evidence led by the Defendant was clearly at variance with their pleadings particularly paragraph 18 of the statement of defence.

2. The Learned Trial Judge erred in law and therefore came to a wrong decision which caused a miscarriage of justice when he held that there was a valid sale to the Defendants by the Plaintiffs family.

Particulars of Error;-

(i) When the sale relied on by the Defendants was not proved in accordance with sale of land under native law and custom i.e. ingredients of sale of land under native law and custom were not proved.

(ii) When the sale upheld by the Judge had wiped out the interest of a Plaintiff who did not consent to the sale of the Defendants.

(iii)When an order of non-suit could have met the justice of this case particularly when there was no consent by the Plaintiff.

3. The Learned Trial Judge erred in law when that Exhibit “B” tendered by virtue of Section 34(i) and 198 of the Evidence Act was tendered as evidence of title by the Plaintiff.

Particulars of Error:-

(i) When Exhibit “B” was tendered to show acts of possession on the part of the Plaintiff.

4. The Learned Trial Judge erred in law when he held that the Plaintiff was not in possession of the land in dispute and therefore came to a wrong decision which caused a miscarriage of justice.

Particulars of Error:-

(i) When Exhibit “B: tendered and admitted showed conclusively acts of possession on the part of the Plaintiff.

(ii) When the Defendants was claiming through Ikolaba Aladan families whose representatives were parties in Exhibit “B” and therefore estopped from denying the possession of the Plaintiff”.

Learned Respondent Counsel’s insistence that the foregoing grounds of appeal and by extention issues and arguments thereto are incompetent seem to draw from the undue prominence and reliance he placed on Order 3 Rule 2 (2) (now Order 6 Rule 2 (2) ) of the Court of Appeal Rules rather than looking at the defects, if any, of the grounds of appeal within the con of the Order and indeed the entire rules of court. Order 6 Rules 2-6 of the rules of this court which specifically provide for grounds of appeal and the powers of the court in relation to such grounds are also hereunder supplied for ease of reference.

“2. (I) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter caned “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for serviced.

(2) Where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the Appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.
4. The Appellant shall not without the leave of the Court urged or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the Court may in its discretion allow the Appellant to amend the grounds of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the Court may deem just.
5. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the Appellant.

Provided that the Court shall not if it allows the appeal, rest its decision on any ground not set forth by the Appellant unless the Respondent has had sufficient opportunity of contesting the case on that ground,

6. The Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason”.

(Underlining supplied for emphasis)

It is a cardinal rule of interpretation of statutes that a sub-section of legislation and any section thereof must be construed not only on itself or by reference to the section but to the whole sections constituting the statute as a whole. See YESUF & ANOR. V. OJO & ORS (1958) Vol. 1 N.S.C.C. 99 and KRANS THOMPSON ORG. Vs. N I P S S (2004) 17 NWLR (Pt. 901) 44 Sc.

It follows from the principle enunciated in these cases that the alleged defects in grounds 1, 2, 3 and 4 in Appellant’s notice of appeal must be viewed within the con of not only those specific provisions in the rules pertaining to the grounds of appeal but in the con of the entire rules of court which also empowers this court in Order 4 Rule 4 to “make any Order, on such terms as the court thinks just, to ensure the determination of the merits of the real question in controversy between the parties”.

In the case at hand, Respondents have not made out the allin relation to the trial court’s specific findings. These are competent grounds of appeal see CHIDIAK Vs. LAGUDA (196egations they levied against grounds 1, 2, 3 and 4 in Appellant’s notice of appeal. All the four grounds allege errors in law 4) NMLR 123 and NWACHIKE: Vs. IBEKWE (1987) 4 NWLR (Pt. 66) 718. I am unable to agree with Learned Respondent Counsel that in the said grounds the Appellant had at one and the same time complained of misdirection and error of law in the judgment appealed against.It must be stressed that the essence of a ground of appeal is to appraise the Respondent of the nature of the complaint being levied in the said ground.

A wholistic application of the Rules of this court to the grounds of appeal complained about by the Respondent, which grounds are neither vague nor unclear as to the complaints they raise, would justify a conclusion quite different from the one contended by Learned Respondent’s Counsel. I am of the firm view that all the four grounds of appeal have been drafted with sufficient clarity and consideration of the issues distilled from them will lead to a just resolution of the issues in controversy between the parties to the appeal. Such grounds are competent and any attack on them must necessarily fail. See ADEROUNMU V. OLOWU (2000) 4 NWLR (Pt. 652) 253 and OKOTIE-EBOH Vs. MANAGER (2004) 18 NWLR (Pt. 905) 242 at 270 SC. Respondents’ objection as to the competence of the grounds as well as the appeal is accordingly overruled. The Appeal being competent will be considered and determined on its merit.

On Appellant’s 1st issue, Learned Appellant Counsel referred to relevant pleadings in their statement of claim at page 13-14 and the evidence led by the Appellant at pages 47 and 48 of the Record of appeal and argued that Appellant had proved his case. The trial court’s refusal to find for him is a perverse decision and same, Counsel submitted, should be set-aside. The testimony of Dw1 at lines 15-20 of page 51 of the record and that of Dw2 at page 53 lines 20-22 all go to support Appellant’s case. Beside all these pieces of evidence which were not controverted, there is also exhibit B, the judgment Appellant obtained in 1973 against stome trespassers on the land in dispute. The defence put up by the Respondents in paragraph 18 of their Amended Statement of Defence as rightly found by the trial judge, Appellant Counsel further contended, had collapsed since the evidence the Respondent gave had varied from what they pleaded. The court’s eventual finding made ouside the pleadings of the parties, submitted Learned Appellant’s Counsel, is without any legal basis. He relied on ADIMORA V. AJUFOR 7 ORS (1988) 6 SCNJ 18 at 28; AKINOLA V. OLUWO & 2 ORS (1962) WNLR 133 and ISAAC OMOREGBE Vs. SAMUEL PENDOR LAW ANI (1980) 3-4 SC 108 at 117 and urged the resolution of the issue and the appeal in Appellant’s favour.

Learned Appellant Counsel argued 2nd and 3rd Appellant’s issues jointly in their brief. Counsel reiterated that Appellant had by his pleadings and evidence in proof thereof shown that the land in dispute had devolved on the Appellant following the death of Appellant’s father who was the original grantee. Exhibit B provided the proof of Appellant’s acts of ownership in respect of the land in dispute. The facts pleaded by the Respondents and the evidence proffered in proof thereto do not make out the defence that Respondents had purchased the land in dispute under native law and custom. The transaction the Respondents asserted as a sale does not qualify for one under native law and custom. Respondents’ failure to plead and prove the names of witnesses to the purchase and the handing over of possession to the Appellant was fatal. Counsel relied on FOLARIN V. DUROJAIYE (1988) 2 SCNJ 213 and submitted that Respondent did not acquire any valid title form to the land in dispute following the invalid purchase. Respondents’ failure to prove title to the land shows that they are trespassers. On the whole if the evidence of the two sides had been put on an imaginary scale would have found for the Appellant against the Respondents. Learned Counsel buttressed his submissions with the decisions in F.B. AWO ONER RANNER Vs. J. E. ANNAN & ORS 2 WACA 258 and AROMIRE & ORS Vs. AWOYEMI (1978) 2 SC 129 at 139. He asked that the two issues be resolved against the Respondents.

On the 4th issue, Learned Appellant Counsel submitted that the state of pleadings and the evidence led by both sides as well as the findings of the trial judge at pages 68 to 69 of the record of proceedings to the effect that the land in dispute belongs to the Oyeniyi family justified an order of non-suit by the lower court. Since neither party will be caused any injustice, Learned Appellant Counsel prayed that this court invokes its powers under Section 16 of the Court of Appeal Act to non-suit the parties. He cited DANTUMBU V. ADENE (1987) 4 NWLR (Pt. 65) 314 at 326 and SOLANKE V. AJIBOLA (1969) NMLR 253.

In response to Appellant Counsel’s arguments under the first Issue, Learned Respondents’ Counsel posited that Appellant’s action against the Respondent was brought in the latter’s personal capacity. Counsel referred to the relevant averments in Appellant’s pleadings and the evidence in support of same. Counsel submitted that Appellant was consistent that he had inherited the land in dispute from his deceased father. The fact that Appellant was not the sole heir to his father came to light when Exhibit B was brought to the knowledge of the Appellant while being cross-examined. Respondents who did not counter-claim, contended his Counsel, from the averments in the statement of defence and the evidence on the averments initially told the lower court that they bought the land in dispute from the Ikolaba Aladan family initially. To forestall trouble, the Respondents however bought the land a second time from the Oyeniyi family who laid claim to the ownership of the land in dispute, to the knowledge of the Appellant at a price of Two Thousand Eight Hundred Naira. Respondents’ case was that the land in dispute was not Appellant’s personal property. Rather, it was family property. Learned Counsel referred to the evidence of Dw1 at page 51, that of Dw2 at page 55 of the record as to the case made by the Respondents. Counsel submitted that the trial judge is right to have dismissed Appellant’s case that had not been established to justify the grant of the reliefs claimed. Counsel relied on ADESANYA V. OTUEWU (1993) 1 NWLR (Pt. 270) 414 and MAKANJUOLA V. AJILORE (2000) FWLR (Pt. 8) 1328.

In further response, Learned Respondent Counsel contended that Appellant had nothing to assimilate from Respondents’ case since there was nothing that favoured Appellant’s case. Appellant, Learned Respondent Counsel submitted, wins only on the strength of the case he made out. Appellant who did not discharge the burden the law placed on him must fail. He relied on NATIONAL MARITIME SERVICES LTD. V. AFOLABI (1978) 2 SC 79.

Finally, Appellant had not established that he was in possession of the land in dispute to sustain a claim for trespass against the Respondents. Appellant’s claim for an injunction could not hold in the absence of any proven right to the land in dispute. Counsel supported his submission with OLAGBENRO Vs. AJAGUNGBADE (1990) 3 NWLR (Pt. 136) 37; ADEBANJO V. BROWN (1990) 3 NWLR (Pt. 141) and AWONER RENNE Vs. ANNAH & ORS 2 WACA 258. He asserted that the first issue is against the Appellant.

As for the 2nd issue for determination, Learned Respondent Counsel argued that the lower court had rightly made use of Exhibit 8 to the discredit of the Appellant. Respondents had shown, while cross-examining the Appellant, that he was not the sole heir of his father’s estate. They also demonstrated that the land in dispute belong to the Oyeniyi family rather the Appellant’s exclusively. Counsel relied on Section 34(1) and Section 199 of the Evidence Act and MADUMELE V. OKAFOR (1996) 4 NWLR (Pt. 445) 649 and AKANBI V. ALATEDE (2000) FWLR (Pt. 11) 1928 at 1942 and urged that the 2nd issue be resolved against the Appellant who did not show this court what miscarriage of justice the use of the document by the lower court caused him.

Under the 3rd issue, Learned Respondent Counsel cited and relied on the dictum of Irikefe JSC (as he then was) in AFRICAN CONTINENTAL BANK LTD V. CHIEF FESTUS SUNMOILA YESUFU (1980) 1-2 SC 49 at 52 to the effect that an order of non-suit would be ordered by a court where a plaintiffs case had neither totally failed nor is the defendant in any case entitled to judgment. Counsel further cited ONWUNALU NDIDI V. O. SADEME (1971) ALL NLR (Pt. 102) 208 and ODI Vs. IYALA (2004) 6 MJSC 92 and contended that a court’s power to order non-suit though discretionary, must be exercised judicially and judiciously and that in the instant case Appellant who had totally failed is not entitled to the order.

Counsel urged that the issue be resolved against the Appellant and the appeal be dismissed with cost.

The issues raised by this appeal would be better understood if we avail ourselves with the facts of the case on the basis of which the appeal arose. A summary of these facts is hereunder attempted.

Appellant’s case at the lower court was that Baale Oyewumi, the father of the incumbent Son of Ogbomoso granted Appellant’s father a piece of land which included the land in dispute. Immediately thereafter, the Appellant and his father cultivated and farmed on the land. Appellant inherited the land on his father’s death forty-four years ago. On inheriting the said land, Appellant sold some portions of the land to specific individuals who proceeded to build on their respective portions. Sometimes in 1969, Appellant sued Bolaji Adeyi and Aminu Amoo both of the Ikolaba Aladan family of Ogbomoso who had disturbed Appellant’s possession over the land in dispute. The decision of the Osun North/West Grade B Customary Court in the suit and in Appellant’s favour is Exhibit B. appellant sued Bolaji Adeyi and Aminu Amoo again in 1973. Exhibit D is the decision in the subsequent suit which Appellant herein won on appeal. Suit NO.HOG/61/88 filed by the Appellant herein against the Respondents at the lower court was commenced and fought in Appellant’s personal capacity claiming as a sole owner the reliefs stated under paragraph 24 of the statement of claim as earlier outlined in this judgment. Paragraphs 1 8, 10, 11, 12, 13, 16, 17, 19,21 of Appellant’s statement of claim show clearly the facts on which the claim is predicated and the capacity in which the reliefs were sought. These paragraphs are hereunder supplied for ease of reference.

“1. The Plaintiff is a pensioner and trader and the head of the Oyeniyi family of Ogbomoso also known as Olapelu family and he is bringing this action in his personal capacity.

8. The Plaintiff avers that the area verged Red in the plan is not family land or extends family land (sic) but the personal property of himself and in personal possession of himself having inherited it from his own father, Pa. Oyeniyi.
9. About forty-four (44) years ago, the Plaintiffs father Pa Oyeniyi died and the Plaintiff thereupon inherited the parcel of land now verged Red in the plan No. O. B. 692A drawn by O. Bamigbose, Licensed Surveyor and dated 25th day of January, 1989. The land inherited included the area now in dispute.
10. Plaintiff avers that for a long time thereafter he was in uninterrupted possession of the parcel of land inherited from his father. He continued to farm on it and he sold portions of it to some people, who now erected buildings thereon and occupied them.
11. plaintiff avers that he was the person who sold plot or portion of the area verged Red in the plan to ine Mr. Oluwole, Mr. O. Akanmu, Mr Lagun and one Mr. Joseph. They have all completed their buildings.
12. sometimes in January 1969, one Bolaji Adeyi and Aminu Amoo, both representatives of Ikolaba Aladan family in Ogbomoso disturbed the Plaintiff and trespass on the area of land verged red in the plan and whereas the area had hitherto been in peaceable possession of the plaintiff.
13. At the conclusion of the case, judgment was delivered, 27/4/71. Plaintiff will rely at the trial of this suit on the certified true copy of the judgment of the court named and described as suit No.C21/69 in paragraph 15 above.
14. Plaintiff avers that on the 29th September, 1988, he observed that the two defendants have entered a portion of his land particularly the area verged yellow in survey plan No. O.B. 692A dated 25/1/89 and draw by O. Bamigbose, Licensed Surveyor. Both defendants entered upon the portion of land along with their agents, servants and or workmen, and they were molding cement blocks.
15. On 30th September 1988, when Plaintiff visited his land again, he once more met the defendants and their servant, agent and or workmen still molding cement blocks and even started a building of about thirteen (13) rooms.
16. Despite Plaintiffs report to Police and the advice of the Police, the defendants persisted in their trespass on that portion of plaintiffs land. Whereupon Plaintiff instructed his solicitor Mr. E. O. Akinwale Esq. to write a letter to the Defendants.
17. Plaintiff avers that despite all the steps he took to keep off the Defendants from his land, the Defendants still persist and they are still continuing their trespass on the portion and land verged yellow on the Plan No. O.B. 892A dated 25th day of January, 1989 drawn by O. Bamigbose, (underlining ours)”.

The Respondents joined issue with the Appellant in their statement of defence to the effect that they purchased the land in dispute originally from the Ikoloba-Aladan family. Respondents, in order to avoid trouble, bought the land in dispute a second time from the Oyeniyi family who had laid claim to the ownership of the land and to the knowledge of the Appellant. Respondents bought the land in dispute from the Oyeniyi family at a rate of N2, 800:00 and under native law and custom. Paragraphs 5, 7, 8, 9, 10, 13, 15, 17, 18 and 19 being crucial averments in Respondents statement of defence are hereunder supplied.

“5. The land in Ogbomoso originally belonged to the Soun of Ogbomoso who holds it in trust for the use of his people.

7. The father of the Plaintiff was not one of such war Chiefs.
8. One of such sectional head and war chief was Ikolaba Aladan.
9. The Land verged red in the Plaintiffs survey plan formed part of the land granted to the ancestor of the Ikolaba Aladan after the Fulani wars.
10. The Ikolaba Aladan family has the right to allot portions of the said land to members of the community for building purposes under native law and customs.
11. The Plaintiff has no right under native law and custom to sell or make an outright grant of any land including the land verged red in the plan filed by the Plaintiff.
12. The defendants aver further that the land in dispute and the area verge Red in the Plaintiff’s plan was the subject matter of suit HOS/6A/78 in which the Plaintiff was the Plaintiff/Appellant.
13. The Defendant will rely on the judgment of the court in the said Suit Hos/6A/78.
14. The land in dispute as part of the Ikolaba Aladan family was granted to the 2nd defendant in this suit under native law and custom several years ago for the purpose of building a house.
15. The 2nd Defendant took possession of the said land after the head of the family and the principal members had customarily handed over the same to her to the knowledge of the Plaintiff.

In proving his case, Appellant called two formal witnesses – Pw1, the surveyor who prepared Exhibit A, the Appellant’s Plan in respect of the land in dispute and Pw2 the Principal Registrar of Customary Court Ogbomoso through whom Exhibit B was admitted in evidence. Appellant also testified on his own behalf. In his evidence in chief, Appellant significantly stated at page 47 of the record thus:-

” … I know the defendants. The defendants have trespassed on the land on which I have obtained judgment. I know the land in dispute. It is located at Isoko Ogbomoso. I commissioned 1st Pw to prepare Exhibit A. I am the owner of the entire land shown in Exhibit A. Baale Oyewumi, the Soun of Ogbomoso and father of the incumbent Soun granted the land in Exhibit A to my father…. My father ‘is dead. I inherited the land granted to my father after his death about 44 years ago. After I had inherited the land I was selling parts of it to outsiders and I built on part of it… Sometimes in January 1969, Bolaji Adeyi and Aminu Amoo both of Ikoloba Aladan family in Ogbomoso disturbed my possession of the land and I sued them to court at Osun North/West Grade B Customary Court Ogbomoso. Exhibit B is the judgment I obtained in that court. …. ”

(Underling supplied for emphasis)

Under Cross-examination the Appellant in a self-destructive manner opened up as follows: –

“I am from Olapelu family. The family house of Olapelu family is at Ita-Olola, Ogbomoso. My father had 4 children. I gave evidence in Exhibit B. I gave evidence as to the number of children my father had. I agree that I gave evidence in Exhibit B to the effect that my father had 10 children… Now say that my father had 10 children… Among the children of my father is Joseph Akano Oyeniyi, he is my younger brother. I am the oldest son of my father. The eldest daughter of my father who was older than I is dead (by consent of counsel, page 5 lines 3-5 of Exhibit B tendered and marked Exhibit BD. I know Adewola but my family did not sell land to Olafimihan and lamidi Ayinde… My family did not execute a purchase receipt in favour of the 1st defendant…” (Underling supplied for emphasis)

In support of Respondent case Dw1 deposed in chief at page 51-53 of the record inter alia as follows: –

“… I know the plaintiff, he is my half-brother. Both the plaintiff and I are members of Oyeniyi, the land in dispute, it is owned by the Oyeniyi, the father of both the plaintiff and myself. Oyeniyi our father is dead. The land in dispute developed on those of us his children, by inheritance, upon the death of Oyeniyi. The plaintiff has no instruction of anybody to bring this action. It is not true as asserted before this court by the plaintiff, that he is the only son of Oyeniyi. There is a building on the land in dispute and the building is owned… by the 1st defendant. The plaintiff, Akande Oyeniyi and I jointly sold the land in dispute to the 2nd defendant. Joseph Akana Oyeniyi was the eldest child of our father al the time of the sale of the land in dispute to the 2nd defendant. The second defendant paid N2, 800:00k to us for the sale of the land in dispute… The plaintiff is not the sole owner of the land in dispute. The sum of N2,800;00k was paid by the 2nd defendant as the purchase price of the land to the three of us jointly i.e. Joseph Akana Oyeniyi (the eldest of us all) the plaintiff and myself jointly”. (Underling supplied for emphasis)

Under cross-examination, the witness opened up all the more thus:-

” … There was a court case in 1969 over the land in dispute. The family delegated the plaintiff to represent it in the 1969 case. Joseph Oyeniyi did not attend court in the 1969 case “.

Dw2 is the late Oyeniyi’s grandson and had lived with the Deceased from 1936 till the time of his (Oyeniyi’s) death. He deposed in the same vein as did Dw1. Dw3 the 2nd defendant did not improve on the testimonies of these two.

The Learned Trial Judge after a through review of the evidence of both sides found as follows:-

” …. The case of the Plaintiff is not that of allotment. Rather, he holds himself as having exclusive ownership of it. The established owner from his own showing is Oyeniyi who is dead. Although he tried to give an impression at the initial stage of his evidence that he was the only surviving child of Oyeniyi, under cross-examination he collapsed like a pack of ill-arranged cards”.

The court concluded that Appellant had not proved his personal ownership of the land in dispute. On the 2nd and 3rd legs of Appellant’s claim the court at page 70 of the record held as follows;-

“As to the second leg of the claim there is no evidence that the plaintiff is or has been in physical possession of the land in dispute in the exercise of his right as a joint owner of the land nor is there evidence that he was allotted the land in dispute by the family. He has therefore not satisfied the requirement which will enable me enter judgment in his favour on that second leg. As an order for injunction is only a necessary instrument to prevent repetition of a wrong complained of and since I have not found any wrong committed to warrant my acceding to the prayer contained in the second leg, there is no basis for granting an order of injunction”.

I prefer the three issues formulated by the Respondents. The appeal is best determined in the con of these issues.

Now, Appellant’s complaint under the 1st issue is that in the trial court’s failure to grant his claim that had been proved, miscarriage of justice had been occasioned to warrant this court’s intervention. Under the 2nd and 3rd issues, Appellant’s grouse is that the lower court had placed undue reliance on Exhibit B. He was also denied the use of aspects of Respondents’ case which supported his case. The two lapses had caused further miscarriage of justice. I am unable to agree with learned Appellant counsel’s both issues.

In a claim for declaration of title to land, damages for trespass and an order for injunction, it is the plaintiffs’ burden to plead and prove by cogent evidence all the material facts on the basis of which he claims. The plaintiff who is at liberty to make use of such aspect of the defendants’ case that supported his does so after he had discharged the primary burden of establishing his case. It has been the repeated decision of this court as well as the Supreme Court that the plaintiff succeeds on the strength of his case alone. Thus, even where the defendant had failed to file a statement of defence or admitted the claim, the plaintiff will only be granted the declaratory or equitable reliefs he claimed on the discharg of his burden by adducing cogent and satisfactory evidence in proof of his pleadings. This principle has become trite see ORJI V. EMOROH (1991) 1 NWLR (Pt.168) 476; MOGAJI V. ODOFIN (1978) 4 SC 91 and JOKOTOYE V. ONIMALU (1998) 13 NWLR (Pt. 580) 157 at 166.

In the instant case from the relevant averments in Appellant’s pleadings, and same have already been reproduced, Appellant’s claim, as correctly alluded to by Learned Respondent Counsel, was instituted in Appellant’s personal capacity. He asserted his title to the land on individual basis stating that the land in dispute had devolved on him as the sole heir to his late father’s estate. It was part of his primary burden to plead and established such facts that would have allowed the trial court find for him inspite of the notorious custom prevalent in the Yoruba society wherein the land in dispute was situate and by which the death of Appellant’s father automatically converts the land hitherto owned by the deceased as an individual into family property. In GAJI V. PAYE (2003) 8 NWLR (Pt 823) 583 at 609, the Supreme Court restated the principle that family property is created in a number of ways which include gift or allotment, will, conveyance intervivos as well as devolution following death intestate of the owner. The trial court’s resort to the apex court’s earlier decision in WAHABI ALAO ANOR. Vs. OLADEJO AJANI supra in this wise is most apt.

It is very clear from the trial court’s judgment that Appellant’s bid at establishing that the land in dispute had devolved on him as sole heir on the death of his father received a fatal blow following his answers to questions put to him while under cross-examination. In the effective words of the trial court, “although he (the Appellant) tried to give an impression at the initial stage of his evidence that he was the only surviving child of Oyeniyi, under Cross-examination he collapsed like a pack of ill arranged cards; he said his father had children who survived him, in Exhibit B. certified true copy of proceedings and Judgment in C21/69: AJANI OYENIYI Vs. BOLAH ADEYI & ANOR tendered through and admissible by virtue of Section 34(1) and 198 of the Evidence Act, he said his father died survived by 10 children”. The evidence before the court justifies this finding and conclusion.

Beyond the fatal blow dealt to Appellant’s case in the course of cross-examination, the respondents had averred specifically in paragraph 17 of their amended statement of defence and called Dw1 who deposed to that effect that the land in dispute was the family property of the Oyeniyi family of which the Appellant was a member and that same had been sold and delivered to the Respondents by principal members of the Appellant’s family. The lower court had no option and must of necessity act on such evidence that had not been challenged or controverted. See MO V. J S C (2000) 12 NWLR (Pt. 682) 44 SC and OGAR V. JAMES (2001) 10 NWLR (Pt. 722) 621 CA.

It had been argued by Appellant Counsel that there were aspects of the case of the Respondents which were to Appellant’s advantage and the trial court should have allowed Appellant assimilate those aspects to his advantage in coming to its decision. I am unable to see any aspect of Respondents case that favoured the Appellant. were it possible for the Appellant to overcomes the devastation Learned Respondents Counsel’s Cross-examination of him inflicted, Respondent’s case remains that the land in dispute is family property validly sold to the Respondents by the owner family. The Appellant also participated in the sale. So even if Appellant as member of the Oyeniyi family enjoyed joint ownership of the land in dispute such interest had been validly transferred to the Respondents herein leaving nothing for the Appellant to subsequently press upon. The 1st issue is resolved in Respondents’ favour.

Appellant’s arguments under his second issue for determination were not worth the efforts. Section 199 of the Evidence Act which the trial judge particularly quoted and relied upon in allowing the use of Exhibit B by the Respondents to discredit the Appellant as the latter was cross-examined is as clear as it could be. The Section Provides:-

“S.199 A witness may be cross examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved, but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him”.

The Respondents had pleaded relevant facts surrounding and indicated their intention to rely on Exhibit B the judgment of the Customary Court wherein the Appellant testified. Appellant’s attention was called to parts of Exhibit B, Appellant’s testimony in the earlier suit, where Appellant deposed that he had sued on behalf of the Oyeniyi family and that he had other brothers. The Respondents had rightly used Exhibit B for the purpose of contradicting the Appellant. The trial court was perfectly entitled to infer that appellant was a liar having been so contradicted. Appellant who had set out to establish that the land in dispute had devolved on him as a sole heir emerged at best a co-owner of the land in dispute shown to be family property that could not have so devolved on an individual. The only logical conclusion from the scenario was that arrived at by the trial court that Appellant’s claim was a false one. Appellant’s credibility had been completely destroyed leaving the trial court no option other than the dismissal of Appellant’s case. Appellant had made the statement in Exhibit B and same had been proved to be inconsistent with Appellant’s subsequent testimony in the instant case. In MADUMERE, Vs. OKAFOR appositely cited by Learned Respondent Counsel, the Supreme Court per Ogwuegbu

JSC held as follows:-

” ..The essential requirements of Section 199 (of the Evidence Act) are that where a party intends to impeach the credit of a witness by showing that what that witness has said in the present proceedings contradicts his evidence in the previous proceedings, his attention must specifically be drawn to those parts of his evidence which are to be used for the purpose of contradicting him, he must be reminded of what he said on that previous occasion and he must also be given an opportunity of making an explanation”,

In the instant case all the foregoing requirements have been complied with and I agree completely with Learned Respondents’ Counsel that the lower court is right in its use of Exhibit B and inference that Appellant’s case had woefully failed. See also OGUNNAIKE V. OJAYEMI (1987) 1 NWLR (Pt. 53) 760 and AKANBI V. ALATEDE NIG. LTD. (2000) FWLR (Pt. 11) 1928 at 1942. The trial court’s decision dismissing Appellant’s case that had not been established is proper and same cannot be revisited by us. It is for that reason that I also resolve the 2nd issue against the Appellant.

Finally, Learned Appellant Counsel has urged us under his 4th issue which is Respondents’ 3rd issue to non- suit the parties in the instant matter. I have my reservation as to the competence of this issue since it was never raised at and determined by the lower court. Being a fresh issue, leave of this court should have been obtained before raising it and such leave having not been had and obtained by the Appellant makes the issue incompetent. See KOYA Vs. U.B.A, LTD (1997) 1 NWLR (Pt. 481) 251 SC and OJO V. GHARORO (1999) 8 NWLR (Pt. 615) 374 CA.

The point may be rightly made that the fresh point being raised does not require the provision of additional material and/or evidence for its resolution in the sense that all that this court requires to consider and resolve the issue are before the court. It is for that reason that one considers the fresh issue so raised and without the necessary leave. The law permits that the issue can be so considered See: IKEANYI V. A.C.B. LTD. (1997) 2 NWLR (Pt. 489) 509 SC and MUSA Vs. YERIMA (1997) 7 NWLR (Pt. 511) 27 SC. The question is: need the Appellant be non-suited? One thinks not. The requirements that must be met to warrant an order of non-suit in a given matter were restated by the Supreme Court in FASIKUN II V. OLURONKE II (1999) 2 NWLR (Pt. 589) 1. See also the decision of this court in INWELEGBU Vs. EZEANI (1999) 12 NWLR (Pt. 630) 266. By these decisions, where, as in the instant case, the Plaintiff failed to establish the case put forward by him in his pleadings as a result of contrary credible evidence, the only order the justice of the case demands is an outright dismissal of the claims. The Appellant herein having failed to establish his case is not entitled to an order of non-suit. His claims were rightly dismissed by the lower court and the law does not permit any order other than what had rightly been decreed by the trial court see: EGONU VS. EGONU (1978) 1112 SC III.

Appellant’s 4th issue and the 3rd among those being considered for the determination of the appeal also fail. As a whole, therefore, the appeal has no merit. It is accordingly dismissed with cost of N20, 000:00k in favour of the Respondent.

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Other Citations: (2008)LCN/2712(CA)