Mr. Ibrahim Oginni Adepoju & Ors V. Mrs. Idowu Famoroti (Nee Oniya) & Ors (2016)
LawGlobal-Hub Lead Judgment Report
JAMES SHEHU ABIRIYI, J.C.A.
This is an appeal against the judgment delivered on 3rd April, 2014 in the High Court of Ondo State holden at Akure. The Appellants in that Court were the Defendants. Their counterclaim was struck out on 21st November 2012 having been withdrawn.
The Respondents who were the Plaintiffs in the lower Court claimed for the following:
a. A DECLARATION that the claimant’s family is the traditional and undisputed owner of the large parcel of farmland at Oke Oko, Emure village, Akure bounded by Filani Orimoloye’s farmland near Ogidan River, Abusoro farmland, Olomi Peter’s farmland and Ojomu Alade’s family farmland thereby entitling them to the customary right of occupancy in respect thereof.
b. AN ORDER to render account of the number of plots sold on the claimants’ family farmland at Oke-Oko, Emure village and the cost of each plot of land sold therein.
c. AN ORDER of perpetual injunction restraining defendants, their servants, privies, agents and successors from committing any or further acts of trespass on the said farmland.
d. The sum of N5,000,000.00
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damages for trespass committed and still being committed by the defendants upon the said parcel of the claimants’ family farmland at Oke-Oko, Emure camp, Akure.
The case of the Respondents in a resume is that the land in dispute is called Oke-Oko in Emure. Emure is an entire village originally owned by Sasere Adegbuji. Sasere Adegbuji had inherited Emure village from his mother Princess Adekorun. Princess Adekorun got Emure village as gift from her father, Oba Deji Arakale who originally owned Emure which is part of Akure. The land in dispute became the property of Egboro after it was allocated to him by his father Sasere Adegbuji. All the children of Sasere Adegbuji got allocation of land at Emure village from Sasere Adegbuji. The part settled upon by Egboro is Oke-Oko. The claim of the Respondents is in respect of the part settled upon by Pa Egboro.
Pa Adegbomire, the Appellants’ great grandfather’s farmland is at Alubere in Emure village and the Appellants are not co-owners of the farmland at Oke Emure village with the Respondents family.
On their own part, the Appellants’ case is that Princess Elusade daughter of Oba Osupa was the
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original owner of the land called Emure and she brought her husband Chief Sasere Adegbuji to farm and settle on the land. Other people came to the land because Adegbuji invited them as friends.
After considering evidence adduced by both parties and written addresses of learned counsel for the parties, the lower Court entered judgment in favour of the Respondents.
Dissatisfied with the decision of the lower Court, the Appellants filed an initial notice of appeal dated and filed 4th April 2014 containing four grounds of appeal. The notice of appeal was amended by order of this Court. The amended notice of appeal dated 22nd February 2015 was filed on 2nd March 2015 and was deemed duly filed and served on 1st March 2016. The amended notice of appeal contains eight (8) grounds of appeal from which the Appellants formulated the following three issues for determination:
1. Whether the trial Court was right when in its wisdom it conjured a non existing Court process titled 1st further Amended Statement of Claim filed on 20th day of January, 2014 and based its decision on the said non existing Court process.
2. Whether the trial Court was
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right when he shifted the onus of proof on the defendant who had already withdraw (sic) their it (sic) counter-claim and also making case for respondent.
3. Whether the claimants/respondents have prove (sic) their case in the absence of/or after removing the perverse findings of the trial Court and the area where the trial Court descended into the arena of making cases for the claimants/respondents.
The Respondents presented the following three issues for determination in spite of the preliminary objection to Appellants’ issue 1 and ground 7 of the amended notice of appeal:
1. Whether there was a subsisting Amended Writ of Summons, 1st Further Amended Statement of Claim and existing Written Statement on oath upon which the trial Court based its decision – GROUNDS 6 AND 7 OFTHE ADDITIONAL GROUNDS.
2. Whether the lower Court based its judgment on balance of probabilities in granting the claim of the Respondents – GROUNDS 2 AND 3 OF THE GROUNDS OF APPEAL.
3. Whether the evidence of the Record supported the findings of the trial Court – GROUND 5 OF THE GROUNDS OF APPEAL.
The appeal was thus argued on the following briefs:
1.
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Appellants brief of argument dated 25th February 2015 and filed 2nd March 2015 settled by Busuyi Bankole Esq.
2. Respondents’ brief of argument dated and filed 6th May 2016 settled by Oluwole Adeyemo Esq.
Arguing issue 1, learned counsel for the Appellants contended that the lower Court based its findings on a non-existent Further Amended Statement of Claim filed on 20th January 2014. Therefore the case of the Respondents was never determined by the lower Court.
It was further argued that the statements on oath relied upon in giving judgment did not accompany the statement of claim. The Respondents, it was submitted, ought to have filed along with the new writ all the accompanying Court processes such as the list of documents and written statements an oath of the witnesses.
The Court was urged to set aside the judgment of the lower Court on the basis of the above omissions.
On issue 2, it was submitted that where a defendant has no counterclaim, the burden of proof lies squarely on the plaintiff.
It was contended that the witnesses called by the plaintiffs in their evidence said that they did not know the land which forms
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the subject matter of the suit.
It was submitted that the onus was on the Respondents to describe the area they are disputing with certainty through cogent and compelling evidence.
Learned counsel for the Appellants complained about the finding of the lower Court that the Appellants are tenants having found that they were in possession and wondered how the Respondents stood by when the Respondents built permanent structures on the land.
The lower Court, it was contended, believed the evidence of Pw3 who denied signing his written statement on oath and wondered how the lower Court could believe such a witness.
The Pw4, 1st Respondent, it was contended, gave evidence under cross-examination that she did not know the boundaries of the land in dispute. We were referred to page 146 of the record of appeal.
It was submitted that a plaintiff cannot be granted a declaration of title to land if he fails to identify the land in dispute or part thereof. We were referred to Tukuru v. Sabi (2003) 10 NWLR (Pt …) 442, Onwuka v. Ediala (1989) 1 NWLR (Pt 96) 182 and Babatola v. Aladejana (2001) 12 NWLR (Pt 728) 597.
On issue 3 learned counsel
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for the Appellants adopted his arguments on issue 2.
It was further contended that the lower Court equated Exhibit P6 as an act of possession in favour of the Respondents but turned round to equate the evidence contained in Exhibits P3, P4, P7 and P8 to acts of denial of the Respondents’ title to the land which is a clear case of double standard on the part of the lower Court in order to favour the Respondents. The Court was urged to so hold and set aside the judgment.
The learned counsel for the Appellants further argued that the lower Court believed Exhibit P4 tendered by Respondents despite the fact that the exhibit does not relate to the land in dispute while it turned round to hold that exhibits P3, P4, p7 and p8 tendered by the Appellants are nothing but proof of denials of the ownership right of the Respondents.
It was submitted that the lower Court shifted the onus of proof on the Appellants who did not counterclaim.
The lower Court, it was submitted, nowhere affirmed that the Respondents were in possession of the land or even have anything on the land the same way the Appellants have proved that they have their house and tenants on
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the land.
The Respondents raised a preliminary objection to issue 1 formulated by the Appellants contending that it was a fresh issue raised without the leave of this Court being sought and obtained. Secondly that Ground 7 of the amended notice of appeal is not connected with any controversy between the parties as the Respondents did not claim for forfeiture and the lower Court made no order for forfeiture.
It was submitted that the issue of the judgment being based on a non existent Court process titled 1st Further Amended Statement of Claim filed on 20th January 2014 with non-existent written statements on oath is a fresh issue being canvassed for the first time as it was not raised at the trial in the lower Court.
The law, it was submitted, is that an appellate Court cannot take a fresh issue without the leave of Court and determine same at the trial Court. We were referred to Inke v. Bank of the North Ltd (2003) FWLR (Pt 176) 648 at 664 G.
The issue of the non existence of the said 1st Further Amended Statement of Claim with non-existent written statements on oath does not arise from the printed record.
As no leave was sought and
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obtained to raise the fresh issue the Court was urged to discountenance or strike out the said issue 1. We were referred to Usman v. State (2014) NWLR (Pt.746) 412 at 426, Jov v. Dom (1996) 9 NWLR (pt 620) 538 at 541.
No argument was advanced on Ground 7 said to be unconnected with any issue in controversy.
This leg of the objection was therefore abandoned and is hereby struck out.
Arguing the main appeal learned counsel for the Respondents submitted on issue 1 that the lower Court was right in holding that the case of the Respondents rested on an Amended Writ of Summons and 1st Further Amended Statement of Claim filed on 20th January, 2014. We were referred to the judgment of the lower Court at page 180 of the record of appeal and page 1-15 of the additional record of appeal containing the application for further amendment of the writ and statement of claim of the Respondents.
That the application dated and filed 10th January, 2014 was not opposed. It was granted on 13th January, 2014. We were referred to page 73 of the additional record of appeal. It was pointed out that though the said processes were wrongly dated 20th January
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2013 which was a mistake of counsel the said amended writ of summons and the 1st Further Amended Statement of Claim showed that they were amended on 20th January, 2014 pursuant to the order of the lower Court made on 13th January, 2014. We were referred to page 16-24 of the additional record of appeal and page 119 – 127 of the record of appeal.
It was submitted that the processes titled “Amended Writ of Summons” and 1st Further Amended Statement of Claim” are existing processes which were validated by the order of the lower Court made on 13th January 2014. The judgment of the lower Court, it was submitted, was based on valid existing processes.
It was pointed out that the written statements on oath of the witnesses and other documents were frontloaded later in the proceedings because at the time the writ was taken out the High Court of Ondo State (Civil Procedure) Rules 2012 had not yet come into force.
If there was any irregularity in the instant case, it was submitted, the Appellants took several steps in the proceedings knowing fully well that there was non compliance with the Rules of Court and are therefore estoppel from raising any
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objection on appeal. We were referred to Order 5 Rule 2(1) of the High Court of Ondo State (Civil Procedure) Rules 2012 and Kumaganam v. Kyari (2002) FWLR (Pt 126) 817 at 826.
On issue 2, it was submitted that in an action for declaration of title to land the onus is on the plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. In the discharge of this onus the claimant must rely on the strength of his own case, and not on the weakness of the defendant’s case. However a plaintiff is entitled to take advantage of any evidence adduced by the defence which tends to support his case. We were referred to Madubuonwu v. Nnalue (1999) 11 NWLR (Pt 628) 673 at 681.
It is the law, it was further submitted, that for a plaintiff to succeed in an action for declaration of title to land he must establish with certainty the identity of the land to which he lays claim. We were referred to Atanda v. Iliasu (2013) FWLR (Pt 681) 1469 at 1482. However, the burden of proof of identity of the land will not arise, it was submitted, when the identity of the land in dispute is not in issue.
The land in the instant, it
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was submitted, is known by the parties. It was submitted that the Dw1 in his written statement on oath at page 92 of the record of appeal admitted the exact boundaries and location of the land in dispute as pleaded by the Respondents. That Dw2 and Dw3 also in their statements on oath at pages 101 and 104 respectively also admitted the boundaries as pleaded by the Respondents.
It was submitted that where the defendant disagrees with the description of the land in the statement of claim, he has a duty to make that an issue in the statement of defence by giving a description which he considers accurate but different from that given by the plaintiff. Where he fails to do so, it was submitted, he would be taken to be satisfied with the description given by the plaintiff. We were referred to Kopek Construction Limited v. Ekisola (2003) FWLR (Pt 139) 1448 at 1502.
The Appellants in the instant case, it was submitted, did not dispute the description of the land in dispute.
The Respondents, it was submitted, gave cogent evidence as to the identity of the land in issue.
Also the W4, it was submitted, under cross-examination confirmed the boundaries of
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the land in dispute.
The lower Court, it was submitted, rightly held that no issue was made of the identity of the land in dispute.
The statement of the Pw3, it was submitted, was not given any consideration by the Court. We were referred to page 140 of the record of appeal.
It was submitted that long possession as the Appellants claim in this case does not vest title on them. We were referred to Tepsin v. Kyamwan (2003) FWLR (Pt 149) 1517 at 1524. Exhibits p3, p4, P7 and P8 were tendered by the Respondents as evidence of continued trespass it was submitted and not as evidence of possession.
It was submitted that the Appellants did not plead anywhere in the statement of defence that their great grandfather Adegbonmire farmed at Oke-Oko, the land in dispute.
It was submitted that since Adegbonmire through whom the Appellants are claiming possession and ownership never farmed at Oke-Oko, the land in dispute, they are trespassers. We were referred to the five ways by which title to land can be established as stated in Thompson v. Arowolo (2003) FWLR (Pt 315) 366 E-F and Akinrinola v. Akintewe (2003) FWLR (Pt 161) 1850.
It was
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submitted that the fact that Sasere Adegbuji had during his lifetime allocated different portions of his land to his children or that he allocated and settled Egboro at Oke-Oko, the farm in dispute was neither contradicted nor debunked by the Appellants under crossexamination.
It was contended that the pleading and evidence of Pw1 and Pw2 that the land of the Appellants is at Alubere in Emure village and not at Oke-Oko Emure village was not controverted by the Appellants. Rather the Appellants admitted in their statement of defence and written statement on oath that they are not co-owners of the land the Respondents are occupying now.
The Appellants, it was submitted, did not plead joint ownership of Oke-Oko land with the Respondents.
On issue 3, it was submitted that the findings of the lower Court were well founded. That the totality of the evidence of PW1, Pw2 and Pw4 supports the case of the Respondents that Sasere Adegbuji had allocated land in Emure village to his children who settled in the respective portions allocated to them and that the part allocated to Egboro was known as Oke-Oko, the farmland in dispute.
We were referred to
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the evidence of Dw2 at page 158 of the record of appeal where he said under cross-examination that it is where Sasere Adegbuji children were farming that they inherited at his death and their own children have remained in those places.
We were also referred to paragraphs 55 and 56 of the 1st Further Amended Statement of Claim which learned counsel for the Respondents argued was admitted by the Appellants through Dw1 in his statement on oath at page 98 of the record of appeal, Dw2 in paragraphs 5 and 6 of his written statement on oath at page 101 of the record of appeal and Dw3 in paragraphs 5 and 6 of his statement on oath at page 104 of the record of appeal.
Where a preliminary objection is raised in the respondents’ brief the objection ought to be argued at the oral hearing of the appeal and the Appellant must file a reply brief. Even where the Appellant does not file a reply brief, the Court ought to consider the preliminary objection on the merits. See the decisions of this Court in Kalagbor v. General Oil Ltd (2008) ALL FWLR (Pt 418) 303 at 315 and Nwankwo v. Ecumenical Dev. Co. Society (2002) 1 NWLR (Pt.749) 513.
A notice of preliminary
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objection can be given in the respondents’ brief, but a party filing it in the brief must ask the Court leave to move the Notice, before the oral hearing of the appeal commences. Where he does not seek leave to move the notice of preliminary objection, it will be deemed abandoned. See Offorkire & Anor v. Maduike & 5 Ors (2003) 1 SCNJ 440 at 448 (2003) 5 NWLR (Pt 812) 166.
In the instant case the Appellants did not file a reply brief. In spite of this the Court ought to consider the preliminary objection on the merits.
But the Respondents’ counsel did not seek leave to move the notice of preliminary objection. It is therefore deemed abandoned and should be struck out. It is accordingly struck out.
An application to set aside any judgment or order shall not be allowed unless it is made within a reasonable time and before any party applying has taken any fresh step after becoming aware of the irregularity. See Order 5 Rule 2 (1) of the High Court of Ondo State (Civil Procedure) Rules 2012.
It is now settled law that it is not every non compliance or irregularity with the rules of Court that will nullify an entire proceeding. Non compliance
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with rules of Court does not generally render the proceedings void. See Duke v. Akoabuyo L. G. (2005) 19 NWLR (Pt 959) 130.
If there was any irregularity in the 1st Further Amended Statement of Claim and other processes of the Respondents before the lower Court, the Appellants did not bring any application to set the proceedings aside but took various fresh steps in the proceedings by filing their own written statements on oath of defence witnesses and final written address of the defendants. They also cross-examined Respondents’ witnesses.
Having taken fresh steps and actions in the proceedings the Appellants will not be allowed to raise any objections on appeal on any alleged non-compliance with the rules moreso that no miscarriage of justice has been occasioned by the alleged non compliance.
Furthermore, the Respondents by motion on notice dated 10th January 2014 sought for leave to amend their writ of summons and further amend the statement of claim. The lower Court on 13th January 2014 granted the leave sought. The Respondents filed the amended writ and the 1st Further Amended Statement of Claim on 20th January 2014 and it was wrongly dated
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20th January 2013, instead of 20th January 2014. The Appellants cannot be allowed to make a fuss of this slight error in dating the process.
In addition, at the time the trial of the case commenced at the lower Court, the matter had been begun based on the old rules of that Court which did not require that the writ of summons and statement of claim be accompanied by list of documents to be relied upon and written statements on oath of the witnesses. Therefore the Respondents rightly filed the written statements on oath of their witnesses as ordered by the Court. There is therefore no basis for the complaint of the
Appellants that the written statements on oath of the witnesses called by the Respondents were not frontloaded as required by Order 3 Rule 2(1)(c) of the Ondo State High Court (Civil Procedure) Rules 2012 which requires the frontloading of written statements on oath of witnesses when an action is begun by writ of summons.
It is clear from the foregoing that issue 1 should be resolved in favour of the Respondents and against the Appellants.
I accordingly resolved the said issue 1 in favour of the Respondents and against the
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Appellants.
Issues 2 and 3 will be taken together.
Since the 8th day of October 1976 when the Supreme Court decided the case of Idundun & Ors v. Okumagba & Ors the Court have held that there are five ways of proving title to land. These are by a traditional evidence; production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. It is the law that the establishment of one of the five ways is sufficient proof of ownership. See ldundun & Ors v. Okumagba & Ors (1976) 9-10 SC (Reprint) 140.
Where the plaintiff and the defendant anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. See Okolo v. Dakolo (2006)
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14 NWLR (Pt 1000) 401.
Learned counsel for the Appellants contended that the lower Court believed the evidence of Pw3 who denied making any written statement on oath. This is far from the truth. See the judgment of the lower Court at page 191 of the record of appeal where the lower Court stated as follows:
“Pw3 is a person known as Adewole Adetula, He disowned his written statement on oath. His evidence is not useful to this trial. He was not crossed examined.”
It is therefore not true that the lower Court believed the Pw3 as learned counsel for the Appellants contended.
The learned counsel for the Appellants contended that the identity of the land was in dispute that even one of the Respondents under cross-examination said she could not describe the boundaries of the land. But learned counsel for respondents submitted that Dw1 and Dw2 agreed with the boundary of land under cross examination and referred the Court to pages 153 and 157 of the record of appeal. At page 153 of the record of appeal the Dw1 stated thus:
“I agree that the land in dispute is called Oke Oko. It is in Emure and bounded by:-
a) Filani Orimoloye’s land is
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within our land.
b) Abusoro farmland is our boundary man
c) Peter Olomi farms within our land and is not our boundary man.
d) Ojomu Alade’s land is our boundary man.”
At page 157 of the record of appeal the Dw2 said under cross examination that “Abusoro community and Ojomu Alade family are boundary men to the land at Oke Oko.”
On the above evidence, the lower Court was right when at page 214 of the record of appeal, it observed that the defendants admit the description of the land in dispute. The lower Court was therefore right when it held that the identity of the land was not in issue.
The case of the Respondents as summarized by the lower Court at page 195-196 of the record of appeal is that the Respondents claim title to the land in dispute through Sasere Adegbuji who originally owned the land at Emure village. Sasere Adegbuji had inherited the Emure village from his mother Princess Adekorun. Sasere Adegbuji allocated the land in dispute to his son Egboro. Sasere allocated other parcels of land in Emure village to his other children. Egboro was the father of Oniya Egboro. Oniya Egboro was the father of two children Melaye and
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Abike both females. The 1st and 2nd Respondents are children of Melaye and Abike respectively. It is the case of the Respondents that they have been in exclusive possession and use of the land in dispute.
The Respondents also say that one Adegbonmire was the son of Sasere Adegbuji who was given his own farmland at Alubere in Emure village in his life time. The Appellants are great grand children of Adegbomire. Their land is at Alubere in Emure village.
However, the case of the Appellants is that the entire land at Emure including the land in dispute known as Oke-Oko land is the exclusive property of Elusade, the wife of Sasere Adegbuji. The case of the Appellants is that Sasere Adegbuji did not have any land at Emure.
The Appellants case is that the Respondents are not related to Elusade and are not entitled to the land.
I have deliberately reproduced the summary of the cases for both parties as contained in the judgment of the lower Court as stated by the Respondents because it is the more credible as it is accepted even by the Appellants. See paragraph 60 of the statement of defence and paragraph 65 of the statement on oath of the Dw1 which was
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adopted by Dw2 and Dw3.
As shown above the case of the Respondents is that the Appellants land is at Alubere in Emure. In paragraph 60 of the statement of defence and paragraph 65 of the statement on oath of the appellants’ witnesses they admitted that they have land also in Alubere in Emure. They cannot own land in Alubere in Emure village and also claim the land in Oke Oko in Emure village. They have not shown the basis for this.
The case of the Appellants was also unreliable because they did not plead joint ownership of the land in dispute having pleaded that the land belonged to Elusade and not sasere Adegbuji. However Dw1 under cross examination said “We claim joint ownership of the land at Oke-Oko.” See page 154 of the record of appeal.
The lower Court was therefore correct in my view when it found that the traditional evidence of the Respondents was more credible.
Issues 2 and 3 are therefore resolved in favour of the Respondents.
All three issues having been resolved in favour of the Respondents this appeal is dismissed by me.
Respondents are awarded N50,000 costs to be paid by the Appellants.
Other Citations: (2016)LCN/8956(CA)
