Oba Jubril Bolaji Maranro V. Alhaji Salami Adebisi (2007)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of the Kwara State High Court of Justice sitting at Omu-Aran in its appellate jurisdiction coram: Hon. Justice Saka Yusuf (Chief Judge), Hon. Justice M.A. Akoja and Hon. Justice H.O. Ajayi delivered on the 13th day of April, 2006.

The facts that led to this appeal are as follows:

The Appellant herein as Plaintiff instituted a civil action against the Respondent at the trial Upper Area Court sitting at Omu-Aran on the 12th day of May, 1999. The claim of the Appellate which is at pages 2-3 of the Record of proceedings state as follows:

“(a) A DECLARATION that the Plaintiff and other members of Moranro family of Aho-Ogbada in Oyun Local Government Area of Kwara State are the only persons entitled to Certificate of Occupancy over the land situate, lying and being at Oyun Local Government Area of Kwara State covering the following towns and villages – Aho-ogbada township, Bakin, Owode, Onisapa, Afijagba, Sanni-Ode, Badwin, Laniyan, Kajola, Inaja-Maliki, Labisi and Fibike. ”

(b) AN ORDER of perpetual injunction restraining the Defendants, their servants, agents, privies or any of them from trespassing dealing with or interfering with the Plaintiff’s family right in and over the aforesaid land in any manner whatsoever having the effect of prejudicing or adversely affecting the rights of the Plaintiff in the land.”

The case went into trial. The Plaintiff (Appellant) called a total of fifteen (15) witnesses and tendered documents while the Defendant (Respondent) called seven (7) witnesses and also tendered some documents at the trial.

Both parties were duly represented by their counsel who addressed the trial court after the close of the evidence of the Plaintiff and the Defendant. The trial court gave judgment by dismissing the Appellant’s suit on the 13th day of April, 2005.

Dissatisfied with the judgment of the trial court, the Appellant appealed to the High Court of Justice, Omu-Aran in its appellate jurisdiction. After the addresses of counsel, the lower court delivered its judgment on the 13th day of April, 2006 by dismissing the appeal. Also dissatisfied with the judgment of the lower court the Appellant has appealed to this honourable court.

The Appellant’s counsel filed 12 grounds of appeal from which he distilled only one issue set out below as follows –

“Whether having regard to the evidence and circumstances of this case the decision of the lower court is not liable to be set aside (Grounds 1 – 12).

The Respondent’s counsel Mr. Rowland Otaru, S.A.N raised a preliminary objection to the effect that the sole issue raised for determination by the Appellant’s counsel does not in any way cover all the 12 grounds of appeal filed by the Appellant. He opined that grounds 7, 8, 9, 10 and 12 as contained in the notice of appeal were not covered by the sole issue and that they are deemed abandoned and the arguments thereon should not be countenanced. He cited Mobil Producing Nig. UNLTD v. Monokopo (2002) 3 NWLR Pt. 753 Pg. 60 at 77; Ojonye v. Ibrahim (2002) 1 NWLR Pt. 747 Pg. 166 at 177.

In his reply brief, the Appellant’s counsel Mr. Dayo Akinlaja argued that it is to be noted that the objection is that grounds of appeal numbers 7, 8, 9, 10 and 12 are incompetent. The prayer of the Respondent is that the said grounds of appeal be struck out for being incompetent. Strangely enough, the grounds for the objection do not bear relevance to the objection. Moreover, there is no submission in the arguments in support of the preliminary objection on the issue of incompetence of the grounds of appeal. The clear import of this scenario is that there is nothing to support the basis and the prayer of the preliminary objection.

I quite agree with the learned Appellant’s counsel that there is nothing in the grounds of objection or argument of the notice of objection to show that the grounds of appeal are incompetent which is the word used by the Respondent’ counsel in the prayer of motion of preliminary objection. There is a difference between incompetence of grounds of appeal and abandonment of grounds of appeal by failure to formulate issues on them. Compare the dicta of the Justices of the Court of appeal in respect of this position. In Mobil Producing Nig. UNLTD v. Monokpo (2002) 3 NWLR (Pt. 753) Pg. 60 at 77 the Court of Appeal held as follows:

“Issue for determination must be based on the grounds of appeal and any issue that does not relate to any ground of appeal is incompetent and ought to be struck out. See Godwin v. CAC (1998) 14 NWLR Pt. 584 162 SC; Shitta-Bey v. A.G. Federation (1998) 10 NWLR Pt. 570, 392 SC; Chief J.A.Y. Imonikhe & Anor v. A.G. Bendel State ft Ors. (1992) 6 NWLR Pt. 248 Pg. 396; (1992) 7 SCNJ 197.” (underlining mine)

Compare Ojonye v. Ibrahim (2002) 1 NWLR Pt. 747 Pg. 166 at Pg. 177, where R.D. Mohammed, JCA put the question of non formulation of issue trenchantly as follows:

“The Appellant filed three grounds of appeal. He formulated two issues for the determination of the appeal. One of the issues for determination was struck out because it did not arise from any of the grounds of appeal filed. The remaining issue for determination relates to ground three only. It therefore follows that grounds one and two of the notice of appeal are not covered by any issue for determination. Where no issue is formulated on a ground of appeal, that ground of appeal must be considered abandoned. See Atunrase v. Philips (1996) 1 NWLR Pt. 427 Pg. 637; Dile v. Imuno (1996) 4 NWLR Pt. 445 Pg. 622 and Effione v. State (1998) 8 NWLR Pt. 562” (underlining mine).

I am of the view that the Appellant’s counsel made the issue in this case all embracing and couched it in such a general form as to encapsulate all the grounds of appeal. There is liberty of counsel in formulating an issue to cover one or more or all the grounds of appeal. See Gabriel Iwuoha & Anor. v. Nigeria Postal Services Ltd (2003) 4 SCNJ 258.

However I am in complete sympathy with the attitude of the Respondent’s counsel even though I disagree with his conclusion that the inelegant drafting of the sole issue means that some grounds of appeal have been abandoned. Appellant’s counsel drafted the sole issue as if it was derived from the regular omnibus ground of appeal. That is not quite good enough. There is the need asserted by the superior courts for any issue formulated not to be too general in scope but to adequately meet the specific issues raised in the grounds of appeal. The purpose of formulating issues is to isolate the critical issues in the grounds of appeal relevant for determination of the appeal. See Richard Igago v. The State (1999) 12 SCNJ 140. Suffice it to say that even though the Appellant’s counsel inelegantly formulated and stretched one sole issue to cover 12 grounds of appeal it is not tantamount to his abandonment of any of the grounds of appeal.

In the circumstances, the preliminary objection to this appeal is hereby dismissed.

My Lords, now to the issue at hand. In arguing the appeal, learned Appellant’s counsel highlighted what he called ‘errors’ in the judgment of the lower court which makes it imperative for us to set same aside. He set them out as follows –

i. Improper evaluation of traditional evidence adduced by the Appellant vis-a-vis the evidence of the Respondent.

ii. Non-admissibility of Exhibits D04, D05 and D06.

iii. Improper evaluation of evidence of acts of ownership and possession within living memory, etc.

iv. Improper usage of Exhibits D010, D07, D09 and D04.

v. Manner of writing the judgment.

In respect of the matter of improper evaluation of the traditional evidence of both parties, learned Appellant’s counsel Mr. Dayo Akinlaja argued that it was wrong of the trial court and lower court to ignore the evidence of traditional history given by the Appellant and his witnesses. He argued that the evidence of the Appellant on traditional history of ownership are in tandem with the criteria set out in the case of Afose Ole & Ors v. Alfred A. Akede & Drs. (1991) 4 NWLR Pt. 187 Pg. 569 at 592-593. He argued that since the Appellant stated how his forebears came to be in possession and how the land devolved on him, through them and was not inconsistent, then it should have been believed by the lower court. He also submitted that since the Appellant’s evidence was not contradicted or challenged under cross-examination, the lower court should have acted on it. He cited Durosaro v. Ayorinde (2005) All FWLR Pt.260 Pg. 167 at 182; Obembe v. Wemabod Estates Ltd. (1975) 5 SC (Reprint) 70 at 83-84; Provost, LACOED v. Edun (2004) All FWLR Pt. 201 Pg. 1628 at 1642-1643.

On the other hand Senior Counsel for the Respondent argued that the Appellant and his witnesses having failed to prove their case as ably found by the trial court and affirmed by the lower court, this appeal should be dismissed.

Failure to adduce cogent and convincing evidence of his root of title was fatal to the Appellant’s case as ably found by the two lower courts. He cited Piaro v. Tenalo (1976) 12 SC 31 at Pg. 37; Elias v. Omo-Bare (1982) SC 25 at 57-58.

He submitted that it is wrong for the Appellant to say that the lower court improperly evaluated the traditional evidence adduced by the Appellant. This is because the decision of the lower court was based on the evidence on the printed record. There was no evaluation of the traditional evidence of the Appellant’s witnesses as evaluation of evidence is only within the purview or province of a trial court. He urged this court not to interfere with the concurrent findings of the two lower courts. He cited Ashiru v. Olukoya (2006) 11 NWLR Pt. 990 Pg. 1 at 24-29.

The court below on this matter after quoting the evidence of the Appellant from the printed record held that –

“No doubt the above pieces of evidence was based on traditional history which is one of the 5 ways of proving title to land. The question is whether the pieces of evidence satisfies the legal requirement of establishing title to land.

In Afose Ole & Ors. v. Alfred A. Akede & Ors (1991) 4 NWLR Pt. 187 Pg. 569 at 592-593; the Court of Appeal had said:

“In an action for declaration of title the averment relating to traditional history must plead:

(a) The founding of the land in dispute;

(b) The persons who found the land and exercised original acts of ownership

(c) The persons who have held title or on whom title has devolved in respect of the land since the founding of the land. ”

Although a claimant for declaration of title is expected to plead the above facts relating to the land in dispute but it is our view that he must prove same on the preponderance of evidences if he is to satisfy the court for the declaration. ”

The lower court then concluded by agreeing with the view of the trial court that all the Appellant’s witnesses testified only about how they paid taxes to him but could not tell who founded their villages. The learned judges of the lower courts held that –

“We want to say that we agree entirely with the trial court view in as far as the evidence of tradition is concerned. As we have observed earlier, a claimant for a declaration of title and who wants to rely on evidence of tradition must not only plead the persons who founded the land and exercised original acts of ownership but must also prove same with cogent evidence. He must also prove persons who have held title or on whom title had devolved since the founding of the land. It is our view also that the mere naming of persons who had been Alaho of Aho-Ogbada without stating how they came in possession or how the land in dispute came to devolve on them could not be said to have satisfied the requirement of traditional history.

The mere naming those who had been Alaho of Aho-Ogbada and of calling them hunters who came to the place without more cannot be regarded at law to be a consistent sense nor affirmatively linking the Plaintiff with the traditional history he sought to rely upon. It is therefore inconsistent and inconclusive.

The position of the law where evidence of tradition is inconsistent and inconclusive is that the Plaintiff must prove facts constituting acts of ownership. This was what the Plaintiff/Appellant again had failed to prove.” (Pages 191 & 192 of the Records.)

The two courts below have found in the negative on this issue of fact of whether or not the Appellant was able to prove on a preponderance of evidence that his progenitors were the first settlers on the land in dispute. I agree with the court below that given all the circumstances of this case, the Appellant’s case at the trial court did not make cogent and consistent sense. His witnesses did not agree on where they all migrated from. There was in fact believable official record to show that Aho-Ogbada might not have existed in 1925. See Owoade v. Omitola (1988) 1 NSCC Pg.802. If the evidence of the present Onira as D.W.7 is related to the contents of Exhibits 004 (the document from the National Archive Kaduna) and 009 (Oyun Local Government Map) it becomes apparent that the evidence that Aho-Ogbada was in existence in 1830 is not only unreasonable, but inconsistent with other evidence before the court. The lower court was of the view that the trial court made a thorough evaluation of the evidence before coming to the conclusion which it did. They also agreed that by virtue of Exhibit D04 read together with Exhibit D09 Irra town is the overlord of all the villages around it and Aho-Agbada was not in existence as at 1925. The lower court in re-evaluating the evidence before the trial court also held that the evidence of the Plaintiff’s witnesses that they paid taxes to him did not necessarily prove that the Appellant’s fore bearers were the founders or overlord of the disputed villages as such payment of taxes or tribute was illegal and order to stop same had been issued since 1987 to the Appellant vide Exhibit D010 – a letter from the Oyun Local Government.

I know it is the duty of this court where there is clear error in evaluating evidence which has resulted in wrong conclusion by the trial and lower court, for this court to re-evaluate such evidence and make proper findings of fact where the credibility of witnesses is not involved. See Jason Ilmesie v. Hyde Ekpeyong Onuaguluchi (1995) 12 SCNJ 120.

However, this court is obliged to give due cognizance to the concurrent findings of fact made by the two lower courts unless the Appellant’s counsel can show them to be perverse. It is the duty of the Appellant to show clearly and positively that such findings deserve to be overturned. See Chief Olatunde v. Abidogun (2001) 12 SCNJ 225. I do not think the Appellant’s counsel has been able to do so in this case. This is because it is not proper for concurrent findings of fact to be interfered with when they are supported by evidence. See Obasohan v. Omorodion (2001) 7 SCNJ 168. Even though it is the duty of this court to disturb concurrent findings of fact if based on wrong perspective of the case, I do think that is so in this instance. See Ibhafidon v. Igbinosun (2001) 4 SCNJ 166. I am of the view having read the record of proceedings that both trial court and the lower court have properly evaluated the evidence and ascribed the correct probative value to the evidence and have thus discharged their functions in relation thereto.

The Appellant went to court for a declaration of title to land. He was not able to prove his claim to ownership of the cluster of villages both at the Upper Area Court and at the appellate division of the High Court who both evaluated the evidence for and against his claim. I see no reason to disturb the concurrent findings of fact of the two lower courts. The first leg is resolved in favour of the Respondent.

Learned Appellant’s counsel also argued that Exhibit D04, D05 and D06 were inadmissible ab initio and it was wrong of the lower court to have relied on it as contradictory evidence to the evidence of traditional history given by the Appellant. He submitted that Exh. D04 did not comply with S.7 of the Public Archives Act. He submitted that the Exh.D04, D05 and D06 were not certified by the Director of Archives in person or that the person who certified it did so with the authority of the Director. He cited Onochie v. Odogwu (2006) All FWLR Pt. 317 Pg. 544 at Pg. 568, 575-576 and Abuul v. Bensu (2003) 16 NWLR Pt. 845 Pg. 59 at 76; Owonyin v. Omotosho (1961) 2 SCNLR 57 at 308; Shittu v. Fasawe (2005) All FWLR Pt. 278 Pg. 1017 at 1032 -1033. He submitted that inadmissible evidence cannot be admitted by consent of parties. Learned Respondent’s counsel in his reply argued that the Appellant who was represented by counsel at the Upper Area Court never objected to the tendering of the certified true copy of the document at the trial court.

My Lords, the lower court was not called upon to answer this question and we do not have the benefit of their reasoning on it. Suffice it to say however that the argument that the requirement that only the Director of Federal Archives must certify a Certified True Copy of a document emanating from there is mere grasping at straws by learned Appellant’s counsel. Must there be a letter from the Director attached to the Certified True Copy that the person who certified it was duly authorized to do so by the Director? I do not think that is the requirement of the law. The law is that where there is no contrary evidence, there is a presumption that things are rightly and properly done. See IRP Nig. v Oviawe (1992) 5 NWLR Pt. 243 Pg. 572; Odubeko v. Fowler (1993) 9 SCNJ 185 at 196; (1993) 7 NWLR Pt. 308 Pg. 637.

On this matter also, learned Appellant’s counsel argued that there is no nexus between D.W.7 who tendered Exhibit D04, D05 and D06. To this Respondent’s counsel replied that as a public document it could be tendered by the party who procured it from the public office. He cited Anatogu v. Iweka II (1995) 8 NWLR Pt. 41 5 Pg. 547 and Agagu v. Oawodu (1990) 7 NWLR Pt. 160 Pg. 56 at 69.

I entirely agree with the Respondent’s counsel that a party can tender the Certified True Copy of a public document even though he was not a party to it.

His counsel may even do so from the Bar. See Daggash v. Bulama (2004) 14 NWLR Pt. 892 Pg. 144 at 187; Okiki II v. Jagun (2000) 5 NWLR Pt. 655 Pg. 19 at Pg.27-28.

Also on the question of the Respondent’s witnesses springing a surprise on the Appellant by tendering the evidence through the witness rather than cross-examining the Appellant with the document, as argued by the Appellant’s counsel, I agree with the Respondent’s counsel’s view that this case being initiated at the Upper Area Court where no pleadings are filed, the issue of taking the Appellant by surprise does not arise. He was represented at the Upper Area Court and procedure there admits of such practice. His counsel was given opportunity to cross-examine the witness who tendered the exhibits.

Learned Appellant’s counsel also argued that the lower court made improper use of Exh. D09. He argued that Exhibit D09 is a certified true copy of the judgment of the Court of Appeal in Case No. CA/IL/31/99 between KOLAWOLE ASHAOYE and SALAMI ADEBISI. It was part of the previous judgments tendered by the Respondent at the trial to establish that the land contested for in this case had been awarded to him in court. He submitted that at page 198 of the Record, it would be seen that the lower court found that the parties involved in those previous judgments are not the same with those in the present case and sequel to that, the lower court held that the doctrine of res judicata did not apply. Having found that the previous judgments (inclusive of Exhibit D09) did not constitute res judicata against the Appellant, the lower court had no cause to turn around to use the decision therein adversely against the Appellant in this case. In other words, the present case ought to have been determined on its own merits independent of the judgments in Exhibits D07 and D09.

The learned Respondent’s counsel made no reply to this argument. This is not surprising since the Appellant’s brief was written in a rambling manner with no indication or separation of the various arguments most of which were jumbled together. In any case the lower court was of the view that even though Exh. D07, D08 and D09 cannot operate as Res judicata to prevent the Plaintiff / Appellant from instituting an action against the Defendant/Respondent at the trial court, the trial court was not wrong in attaching high probative value to findings of fact contained in the judgments of the High Court and the Court of Appeal in which similar facts in issue were decided. I cannot disagree with this position of the law. In Ajuwa v. Odili (1985) 2 NSCC Pt. 11 Pg. 1130 the Supreme Court held that –

“The judgment of co-ordinate jurisdiction has a high evidential value and very strong persuasive effect and if a judge is persuaded by such judgment he has committed no wrong against the principle of justice.”

I am in complete agreement with the judgment of the lower court. I find no merit at all in the issue raised in support of the grounds of appeal and I hereby dismiss this appeal. I award N30,000.00 costs against the Appellant for the Respondent.

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Other Citations: (2007)LCN/2551(CA)