Ojo Adebayo Vs Mrs. F. Ighodalo (1996)
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C.
The Appellant as plaintiff in the Ibadan High Court for himself and on behalf of Banjoko Family claimed damages for trespass and perpetual injunction against the Defendant/Respondent, her agents, servants and/or privies in respect of their land at Olomi Area Olojuoro Road, Ibadan, and for perpetual injunction restraining her from further acts of trespass.
Pleadings were ordered, filed and exchanged.
The plaintiff’s case on the pleadings was that his family owned the land in dispute through settlement by one Ojo, his ancestor after the Jalumi War. The same pleadings averred that the land in dispute formed only a portion of land shared between two brothers, Ojo and Onikeola as farmland, popularly called Banjoko. In his testimony, however, plaintiff said that that piece of land was called Elewu and that his grandfather Ojo, settled on the land in dispute during and after the Jalumi War as pleaded. In his evidence in support of the plaintiff’s case, 2nd P.W. Yesufu Onikeola, said that the plaintiff’s grandfather was Odewale and not Ojo as pleaded and finally that Onikeola, his grandfather, was the original owner of the land in dispute and not Ojo as pleaded.
The plaintiff also finally claimed in his pleadings and testified in support thereof that his family had been in possession of the land in dispute through various acts, mostly farming, but further still by granting a portion of the land to one Raji Ogundiran who even though died a long time ago and was unknown to him, he still allowed his descendants to remain on the land as customary tenants. He called four of their boundary men who supported his case. The cause of the dispute in the instant case was the complaint of the plaintiff that the defendant had trespassed on the land in dispute; there having been an earlier trespass some fifteen years before, leading to the challenge of the defendant with a fight ensuing that culminated in the prosecution and conviction of two persons from both sides.
The defendant on the other hand, joined issues with the plaintiff in her Statement of Defence wherein she pleaded by tracing her root of title by purchase in 1960 from Akatapa Family whose title was by settlement over 100 years ago. She also claimed to have been farming on the land in dispute for several years; that she purchased several different portions of land at different times and supported them by conveyances vide Exhibits “A”, “C2” and “C1” respectively.
In a well considered judgment Adekola, J., on 20th June, 1985, dismissed the plaintiff’s claims in their entirety. The plaintiff being dissatisfied with the said judgment appealed to the Ibadan Division of the Court of Appeal which also on 18th July, 1988, in affirming the trial court’s decision held, inter alia, thus:
“The traditional evidence led in this case clearly appears to be completely unsatisfactory for any reasonable tribunal to have said that the burden of proof had been discharged. Issues (i) and (ii) posed by the learned counsel for the Appellant above must therefore be answered in the negative, the Appellants did not proof their title to the land in dispute by traditional evidence nor did they prove that they were in possession of the land. This appeal has undoubtedly come to an end and after arriving at those conclusions as I have done.”
Being further aggrieved by this decision the plaintiff has now appealed to this court, having obtained leave to do so on issues of fact on the 18th of October, 1988, premised on the six grounds of appeal earlier filed attacking the decision. The parties exchanged briefs of argument in accordance with the rules of court. Two issues were submitted at the plaintiff’s instance – the second of which has been subdivided into two – for our determination thus:
“(i) Having regard to the finding that the Appellant’s ancestor Ojo was the original owner of the land, was the Court of Appeal entitled to hold that the traditional evidence of the Appellant was unsatisfactory .
(ii) Did the fact that the Respondent was able to prove purchase from the Akatapa family amount to proof which could defeat the Appellant’s traditional history”
The two sub-issues of issue (ii) above are renumbered by me as follows:-
“(iii) Did the Appellant need to prove any acts of possession, and did they prove sufficiently such acts”
(iv) Were the acts of possession attested by the Respondent and her witnesses of any probative value”
The defendant who did not formulate any issues for our determination, both in her brief and by oral submission of her counsel, attacked all four issues filed by the plaintiff in that the grounds from which they were distilled are incompetent; that being no grounds of law they be struck out since they are grounds of facts, mixed law and facts for which no leave of the court below or this court was sought. Besides, it has been contended, the issues are wrongly and inappropriately couched or worded in breach of the principles laid down by the court below and this court in the cases of Amuda v. Adelodun (1994) 1 NWLR (Pt. 360) 26 and Bereyin v. Gbobo (1989) 1 NWLR (Pt. 97) 372. For instance, argument is proffered how in defiance of decided cases, issue No.1 on whether the plaintiff proved his title by traditional evidence and issue No. 3 on whether the plaintiff needed to prove sufficient acts of possession, were lumped together with the issue relating to delay, laches and acquiescence which was not one of the issues posed by the plaintiff for the determination of this appeal in ground 1. As issues must flow or arise from grounds of appeal it is further contended, it is wrong to distil several issues from a single ground as done here where three issues were predicated on only one ground i.e., ground 1, adding that both the ground and the issues together with arguments canvassed therein should be struck out. The defendant further contends that ground 5 for which the plaintiff obtained leave of the court below is also incompetent and should be struck out because it alleged both a misdirection on the fact and arrived at a wrong conclusion in law, thus rendering the ground incongruous and defective vide Udozor v. Egosionu (1992) 1 NWLR.(Pt. 218) 458-460. As the ground did not disclose what wrong legal conclusion the Court of Appeal arrived at to enable the defendant know the real complaint or which aspect of the judgment is being attacked on point of law, we were urged to strike out the appeal. The case of Shell Petroleum v. Otoko (1990) 6 NWLR. (Pt. 159) 693 at 707 was called in aid. In respect of ground 6, it is argued that although it is a good ground but since no issue related to or flowed therefrom, it is irrelevant to the appeal and should also be struck out. If grounds 1, 2, 3, 4 and 5 are declared incompetent and ground 6 as irrelevant, it is finally contended, the Notice of Appeal becomes a nullity and should be struck out.
I see the force in the objection raised by learned counsel for the defendant, the ruling in which we said we would embed in this judgment. In the first place, a cursory look at grounds 1,2,3 and 4 shows palpably that they are grounds of either facts or of mixed law and facts (certainly not of law) for which leave of the court below or of this court ought to have been sought and obtained. Such leave not having been obtained to argue them, they are unarguable and incompetent. In the result, grounds 1,2,3 and 4 are accordingly struck out.
Secondly, in respect of grounds 5 and 6, prior leave having been shown to have been obtained to argue the former and learned counsel for the defendant having conceded in argument that the latter is a good ground, the fact that both grounds are adequately related to the issues, renders neither of them incongruous nor unarguable. The two grounds being competent and arguable, the objection thereto is accordingly overruled.
I shall now proceed to consider the issues seriatim as follows:-
Issue No. 1 simply put, asks: Was the plaintiff’s traditional evidence unsatisfactory I will answer it by firstly pointing out that for his convenience, the plaintiff distorted the findings of the court below when he submitted in his brief as well as in oral submission that the writer of the lead judgment (Kutigi J.C.A., as he then was) held at page 112 of the Record that both the plaintiff and 2nd P.W. agreed that the land in dispute belonged to Ojo either by settlement or by a grant to him (Ojo) by his senior brother, Onikeola. For the avoidance of doubt what the learned Justice said is reproduced hereunder thus:
“Apart from the boundarymen, only the appellant and P.W. 2 gave traditional evidence in accordance with the pleadings. The appellant said that the area is called Elewu farm and not Banjoko as pleaded. P.W. 2 on the other hand said the land originally belonged to his father Onikeola.
And that it was Onikeola who gave the land to Ojo ………….
…………………………………… I am therefore inclined to agree with the submission of Mr. Ogunsola for the appellant that both the appellant and P.W. 2 ultimately agree that the land in dispute belonged to Ojo either by settlement or by a grant to him by his senior brother Onikeola. But my worry is that the learned trial judge did not reject the appellant’s claim for that reasons (sic) of “inconsistency in the appellant’s and P.W.2’s evidence alone ”
What the learned justice, said in the above statement is no more than that he was inclined to agree with the submission of Mr. Ogunsola for the appellant that both the appellant and P.W. 2 ultimately agreed that the land in dispute belonged to Ojo either by settlement or by a grant to him by his senior brother Onikeola. His (the learned Justice’s) worry, however, was that the learned trial Judge did not reject the appellant’s claim for reasons of “inconsistency” in the appellant’s and P.W. 2’s evidence alone. It is therefore wrong, if not mischievous and misleading to suggest that that was the finding of the court. Indeed, it was not and it is therefore inconceivable for the plaintiff to say that the court below agreed with the plaintiff’s submission that the evidence led by him (plaintiff) was to the effect that the land in dispute belonged to Ojo. Afortiori, it is preposterous to contend that the finding disposed of the only reason given by the learned trial Judge for rejecting the traditional evidence of the plaintiff. There was nothing of the sort. This is because (the highly irreconcilable contradictions in the pleadings and testimony of the plaintiff and 2nd P.W. on traditional history, part of which I highlight below to underscore the point I am making.
Firstly, the plaintiff pleaded that Ojo was the original owner by settlement of the land in dispute vide paragraph 4 of the Statement of Claim. The evidence of 2nd P.W. was that Onikeola was the original owner of the land by settlement. Secondly, the pleadings disclose that the time of the alleged settlement was after the Jalumi War. However, the evidence led in court points to the fact that the land in dispute was settled upon during the Jalumi War.
Thirdly, the period of Jalumi War is unknown as that War was a local war of which no judicial notice could be nor was taken of its timing at the trial. Fourthly, the time of the alleged settlement remains unknown and is therefore a matter of conjecture. Compare the defendant’s pleading and evidence to the effect that the time of her vendor’s settlement on the land in dispute was some 100 years ago, thus making it more ascertainable and predictable. Fifthly, the pleadings, aver that the land in dispute is known and called Banjoko but evidence led in court was that it is known and called Elewu. Sixthly, it was pleaded that Ojo was the ancestor of the plaintiff whereas in his testimony he told the trial court that Ojo was his grandfather, 2nd P.W., on the other hand, in his evidence gave the name of the plaintiff’s grandfather as Odewale.
No tribunal worthy of its name would accept conflicting statements such as postulated by the plaintiff. Indeed, evidence was at variance with the pleadings and as the evidence of witnesses for the plaintiff clearly contradicted one another, it ought to be rejected offhand or deemed not established. See Nwakuche v. Azubuike 15 WACA 46; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301; Uredi v. Dada (1988) 1 NWLR (Pt. 69) 237 at 246 and Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511. Such conflicting statements that the plaintiff allowed to be perpetuated in this case cannot be both true but could both be false. See Craig v. City Press Ltd. (1975) 1 W.S.C.A. 100 at 113.
In the light of the above, the learned trial Judge rightly, in my view, rejected the traditional evidence of settlement on the land in dispute put forward by the plaintiff and the court below was justified, in my view, to have affirmed that finding. Furthermore, as the court below, as I have pointed out elsewhere in this judgment, no where stated it accepted the plaintiff’s traditional evidence as claimed by the plaintiff in his brief and proffered orally before us the decisions of the two lower courts constitute concurrent findings by them. As a matter of practice, this court will be loath to disturb such concurrent findings of fact by the two lower courts except in special circumstances e.g., the commission of error in substantive or procedural law none of which I can discern in the instant case at the plaintiff’s prompting. See Egonu v. Egonu (1978) 11/12 S.C. 111 at 129; Mogo Chinwendu v. Nwanegbo Mbamali (1980) 3/4 S.C. 31 at 53; Ogiesoba Otubu & 2 Ors. v. B.A.A. Guobadia (1984) 10 S.C. 130 and Balogun v. Amubikanhun (1989) 3 NWLR. (Pt. 107) 18. The principle of law is that where there is a claim for trespass and injunction, title to the land involved is put in issue, and this makes it incumbent on the trial Judge to consider the issue of title to the land or exclusive possession to it. See Okorie v. Udom (1960)5 F.S.C.162;(1960) SCNLR 326 Amakor Obiefuna (1974) 3 S.C. 67 at 75, 76; (1974) 1 All N.L.R. (Pt.119) at 128; Kponuglo v. Kodadja (1934) 2 WACA 24; Ogunde v. Ojomu (1972) 4 S.C. 105 at 106 and Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373. In the instant case, the trial court having accepted the defendant’s account as to her title and exclusive possession the law ascribes title to the land in her who had proved same. See Aromire v. Awoyemi (supra) and Kareem v. Ogunde (1972) 1 S.C. 182. Issue 1 is accordingly resolved against the plaintiff.
Issue No.2 queries whether the fact that the defendant was able to prove purchase from the Akatapa family amounted to proof which could defeat the plaintiff’s traditional history. As held elsewhere in this judgment, the plaintiff having relied on settlement as his root of title to the land in dispute but his evidence dilated between settlement and grant, his evidence which at the end of the day became conflicting and contradictory ought to be dismissed as unsatisfactory. See Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR. (Pt. 7) 393 and Ajani v. Ladepo (1986) 3 NWLR. (Pt. 28) 276. Of Onyido v. Ajemba (1991) 4 NWLR. (Pt.184) 203 at 223. The trial court held as much and the court below upheld the finding. See also Fasoro v. Beyioku (1988)2 NWLR. (Pt. 76) 263. Besides, the two lower courts accepted proof of the title of the defendant to the land in dispute through sale and conveyance vide Exhibits A, 01 and 02 respectively as against the plaintiff’s failure to aver facts relating to the founding of the land in dispute, the persons who founded it and exercised original acts of possession and/or title but rather equivocated as to its devolution and founding: See Kalio v. Woluchem (1985) 1 NWLR (Pt. 4) 610 at 628. See also Piaro v. Tenalo (1976) 12 S.C.31 at 41. Where he fails to satisfy this requirement, his case fails on that, particularly where the defendant proves good title. See Da Costa v. Ikomi (1968) 1 ANLR 191. With due respect the issue here has become irrelevant in fact a non-issue in that the plaintiff founded his title on settlement and not on possession.
The plaintiff having failed to prove his title, it is wrong of him to turn round to rely on acts of possession which acts only smack of the radical title pleaded. It is unnecessary therefore to consider the plaintiff’s acts of possession as such acts by him on the land in dispute rather than being viewed as acts of possession become acts of trespass, See Da Costa v. Ikomi (supra), Amakor v. Obiefuna (supra) and Fasoro v. Beyioku (supra).
The third issue posed by the plaintiff is whether he (plaintiff) would need to prove acts of possession and whether he proved sufficient such acts. The plaintiff’s action being that for trespass and injunction, he (plaintiff) would ordinarily need to prove exclusive possession but because of the nature of the defence, he (plaintiff) has to show better title or right to possession. It ought to be borne in mind that it is when both plaintiff and defendant failed to prove title that resort is had to acts in recent times. The proposition of law that if the evidence of tradition is inconclusive the case must rest on question of fact vide Ekpo v. Ita (193234) 11 N.L.R. 68; Omoregbe v. Edo (1971) 1 All NLR. 282; P. M. Alade v. Lawrence Awo (1975) 4 S.C. 215 at 228 and Ogundairo v. Gbadamosi (1974) 4 W.S.C.A. 27 at 31, has no sway here in that the plaintiff having put his title in issue and possession rested on traditional history that failed, then acts of possession become irrelevant and should not be considered in granting a declaration of title to him. See Ogungbemi v. Asamu (1986) 3 NWLR. (Pt. 27) 161. The issue is accordingly answered in the negative.
The fourth and final issue which like issue No. 3, is an off-shoot of issue No.2 asks: Were the acts of possession attested by the defendant and her witnesses
In order to sustain this issue, which as I seek to demonstrate hereunder is vague and confusing, the plaintiff at page 13 (paragraph 5.08) and page 15 (paragraph 6.03) of his brief referred to what he claimed to be “clear and cogent evidence” proffered by him in support of his acts of possession as follows:
“The Defendant had been farming on the land in dispute within the last five years. She destroyed our own orange trees and palm trees before she planted her own.”
The above piece of evidence is part of other pieces of evidence given by the plaintiff and his 5th witness (P.W. 5) and relied upon by him but which the defendant had urged the two lower courts at pages 61 and 103 of the Record to be expunged for going to no issue because they constituted pieces of evidence upon which there was no pleading. The piece of evidence referred to at page 2 of the plaintiff’s Brief (paragraph 1.03) says: About seventeen years ago the four of them were found guilty and fined.” This is another piece of evidence, it is urged, that merits to be expunged.
There is merit in the application of the defendant to expunge these pieces of evidence as one is at a loss to decipher from what ground of appeal they emanate or flow. Furthermore, no ground of appeal alleged that certain acts were attested (whatever that nomenclature connotes) by the defendant and her witnesses. Besides, one does not know whether or how acts of possession which were attested by a person or persons have probative value. Stroud’s Judicial Dictionary of Words and Phrases, 4th Edition, Volume 1 defines the words to attest inter alia as: ” ‘To attest’ is to bear witness to a fact. Take a common example: a notary public attests a protest: he bears witness not to the statements in that protest but to the fact of making of those statements: so, I conceive, the witnesses in a will bear witness to all that the statute reassures attesting witnesses to attest, namely that the signature was made or acknowledged in their presence” (per Dr. Lushington, Hudson v. Parker, 1 Rob. Ecc. 26. I do not think that in formulating the plaintiff’s issues in the case in hand learned counsel for him gave much thought and care to his use of the words to attest which in this instance are inappositely used. Since the issue would appear not to flow from any ground of appeal it ought to be struck out. I accordingly strike it out. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718.
In concluding my consideration of the issues raised in this appeal. I agree with learned counsel for the defendant that only one single issue would have been sufficient to dispose of this appeal, to wit: whether having regard to the case of the parties before the trial High Court, was the court below right in affirming the judgment of that court My answer, with due respect, had it been asked would have been in the positive to the effect that, in view of the pleadings and the evidence proffered by the parties, the court below rightly and justifiably dismissed the plaintiff’s case, affirming the judgment of the trial court and I so hold.
For all I have been saying, this appeal lacks merit and it is accordingly dismissed. The decision of the Court of Appeal, Ibadan dated the 18th July, 1988 is accordingly affirmed. I award N1,000 costs to the defendant.
Other Citation: (1996) LCN/2442(SC)
