Oladapo Fabusola & Anor V. Adubiaro Fakiyesi & Anor (1998)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
This appeal is against the judgment of the High Court of Justice of the then Ondo State sitting at Ado-Ekiti and delivered by Akintan J, (as he then was) on 29-3-1990. The parties at the lower court are members of the same Egbedi family of ado-Ado, Ado-Ekiti.
The respondents as plaintiffs had instituted the action against the Appellants as defendants and claimed in their paragraph 21 of the Statement of Claim the following two reliefs:-
(a) “A declaration that Egbedi palace at Iro Street, Odo-Ado Quarter, Ado-Ekiti is the Chieftaincy house of Egbedi Family of Ira Street, Odo-Ado Quarter, Ado-Ekiti in which a reigning Egbedi lives.
(b) An order that the defendants who are children of the last Egbedi should leave the said palace to make room for a new Egbedi who is soon to be appointed.”
The case went into hearing after pleadings had been duly filed and exchanged. In the course of the trial, the 2nd plaintiff and 7 other witnesses gave evidence in support of the claims of the plaintiffs while in support of the case of the defendants, 1st defendant and two other witnesses testified.
The case for the plaintiffs was that the house occupied by the defendants belonged to the entire Egbedi family or Odo-Ado, Ado-Ekiti. They contended that every reigning Egbedi lived in that house on installation as an Egbedi. That on the death of an Egbedi, the family of the deceased Egbedi would vacate the chieftaincy house at the end of the funeral of the deceased Egbedi. Evidence was given on the previous Egbedis who had lived in the house and whose families vacated the house after the death of such Egbedis. That the dispute in the present case arose after the death of Egbedi Fabusola, the father of the defendants who refused to vacate the chieftaincy house after the death of their father to make room for the incoming new Egbedi that would be appointed. When several efforts made by the elders to resolve the dispute failed, the plaintiffs instituted this action against the defendants.
For the defendants, it was their contention that the house in question was the personal property of their father which they inherited after his death and that the Egbedi family had no chieftaincy house as such.
The learned trial Judge after reviewing the evidence before him came to the conclusion that the plaintiffs had proved their case against the defendants and consequently granted the reliefs claimed in the action and ordered the defendants to vacate the house. Part of this judgment at page 48 of the record reads:-
“I have no doubt in finding as a fact that the house in dispute is the chieftaincy house of the Egbedi family where all reigning Egbedis lived with their wives and children after installation as an Egbedi. I disbelieve the evidence of the defendants to the effect that the land on which the house was built originally belonged to their grandfather and that their father was responsible for the building of the house. I hold that it was the Egbedi family that rebuilt the house.”
The defendants who were aggrieved by this decision of the lower court have now appealed against it by filling their notice of appeal containing 3 grounds of appeal. In the brief of argument filed on their behalf by their learned counsel, the defendants who are now the appellants in this court had abandoned ground 3 of their grounds of appeal which was said to have been overtaken by events which resulted in their expulsion from the house in dispute while this appeal was pending. Ground 3 is accordingly hereby struck out. From the remaining 2 grounds of appeal, the mowing 3 issues were identified in the appellants’ brief.
“1. Whether from the evidence led in support of the plaintiffs’ claim, the learned trial judge was right in identifying the house in dispute as the plaintiffs’ chieftaincy house.
- Whether the learned trial Judge gave any proper appraisal to the evidence before him before reaching the conclusion which he reached by giving judgment in favour of the plaintiffs.
- Whether the learned trial Judge was right in holding in his judgment that he found as a fact that the house in dispute was the chieftaincy house of the Egbedi family without giving reason for the finding and whether the description of the house as the Egbedi chieftaincy house in the evidence of DW 1 was enough admission against the defendants to preclude the learned trial judge from examining that evidence as to the proper identity of the house in dispute before basing his judgment on the evidence of admission of DW1 against the interest of the defendants.”
The plaintiffs who are now the respondents have also filed their brief of argument in which only one issue was formulated for the determination of the appeal. The lone issue reads:-
“Whether in view of the evidence led, the house in dispute is a chieftaincy one for the whole family or the personal house of the father of the defendants.”
Before considering these issues as formulated in the appellants’ brief, I wish to reiterate the Supreme Court and this court’s admonition to counsel times without number that it is wrong for counsel to formulate issues for determination in excess of the grounds of appeal filed as was done in the appellants’ brief of argument in this case. Indeed, it has been stated to need further emphasis and stressing that except in special cases where the ground of appeal so dictates, it is undesirable to formulate an issue in respect of each ground of appeal.
See Attorney-General of Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352; Utih v Onoyivwe (1991) 1 NWLR (Pt.116) 116; Oyekan v. Akinrinwa (1996) 7 NWLR (Pt.459) 128.
Thus in the instant case, the formulation of 3 issues from the remaining 2 grounds of appeal in the appellants’ brief of argument is quite wrong and does not show diligence on the part of the learned counsel.
It is observed that although 3 issues were raised in the appellants’ brief of argument, all the issues relate principally to the alleged failure of the lower court to properly appraise the evidence before it before coming to the conclusion that the plaintiffs/respondents had proved their case. For this reason, I am also of the firm view that the only real issue for determination in this appeal is only one as identified in the respondents’ brief of argument. In order words the only issue for determination in this appeal is whether having regard to the evidence on record, the finding of the learned trial judge that the house in dispute between the parties in this appeal is a chieftaincy house for the entire Egbedi family and not the personal property of the father of the appellants is right.
The main argument of the appellants in support of this issue is that the identity of the house in dispute was not proved by the evidence. Their learned counsel referred to paragraphs 3 and 4 of the statement of claim and paragraph 8 of the statement of defence and submitted that the house in dispute was variously described by the parties as being at Ira Street Odo-Ado quarter Ado-Ekiti and within the urban area of Ado Township while the defendant was saying that Egbedi family had no chieftaincy house at Iro Street Odo-Ado Quarter, Ado-Ekiti.
Counsel referred to the case Efetiroroje v. Okpelefe II (1991) 7 SCNJ (Pt. 1) page 85; (1991) 5 NWLR (Pt.193) 517 and submitted that this being a land dispute, the onus of proof of the identify of the land was on the plaintiffs and that they did not discharge the onus. Learned counsel referred to a number of different versions in the evidence of plaintiffs’ witnesses and argued that there were many contradictions in the evidence on the identity of the house to justify its rejection by the lower court particularly the evidence on traditional history of the house in dispute and the ownership of the land on which the house was built. That since the identity of the house in dispute was not established by the respondents, their claim ought to have been dismissed. Learned counsel to the appellants then referred to a number of cases particularly Mogaji v. Odofin (1978) 4 SC 91 at 98 and submitted that the learned trial Judge did not appraise the evidence at all before coming to his conclusion that the respondents had proved their case.
For the respondents however it was argued that the boundaries of the disputed house were pleaded in paragraph 4 of the statement of claim and that in view of what was pleaded by the appellants in their paragraphs 5 and 7 of their statement of defence, the identity of the house in dispute was not made an issue in the case. That in any case, the respondents had through their witnesses led evidence which clearly established the identity of the house in dispute. That taking into consideration that even the appellants’ witness DW 2 gave evidence in support of the case for the respondents, the learned trial Judge was right in finding in their favour. Learned counsel then stressed that since there is no complaint in this appeal that the judgment of the lower court is perverse, there is no basis for its being disturbed by this court on appeal. The cases of Ojo-Osagie v. Adonri (1994) 4 NWLR (Pt.349) 131 at 141-142 and A.C.B. v. Nwadiogbu (1994) 7 NWLR (Pt.356) 330 at 343 were cited and relied upon in support of this submission.
There is no doubt whatsoever that in a claim for a declaration of ownership or exclusive possession of a piece of land, the first and foremost duty on the claimant is to describe the land in dispute with such reasonable degree of certainty and accuracy that its identity will no longer be in doubt. See Baruwa V. Ogunshola & Ors. (1938) 4 WACA 159, Okosun Epi & Anor. V. Johnny Aigbedion (1972) 1 All NLR (Pt.2) 370 and Odiche v. Chibogwu (1994) 7 NWLR (Pt. 354) 78 at 86. In the present case, the identity and location of the house in dispute was pleaded clearly in paragraphs 3, 4, and 5 of the statement of claim and enough evidence was led by the witnesses called by the plaintiffs/respondents to establish the pleaded facts. In other words by paragraphs 3, 4 and 5 of the statement of claim, the Egbedi family chieftaincy house was shown to be located at Ire Street Odo-Ado Quarter, Ado-Ekiti and all the features surrounding that house including the Oloba shrine directly in front of the house were pleaded. The first witnesses for the plaintiffs/respondents Suberu Ogunyebi in his evidence at pages 14-15 of the record had this to say on the identity and location of the house in dispute.
“The Egbedi chieftaincy house ism NO.1 Iro Street Odo-Ado. Ado-Ekiti. The house is bounded al its back by Agidigbi’s house. Agidigbi is now dead. One of his children is Sabimonu Fatoye who died recently after the institution of this action. The house is bounded in front by Ado-Ikare road. It is bounded on a third side by the house of Ogunkemi and on the fourth side by the house of Ogunyebi who is my father. My father is the only person who built on the side where his house was by the chieftaincy house. We have the Oloba shrine in front of the chieftaincy house”.
This evidence has clearly established the identity of the house being disputed between the parties. In any case the very fact that the parties are also members of the same Egbedi family disputing over the ownership of the house in dispute occupied by the defendants/appellants who are also of Egbedi family, the possibility of the house in dispute not being known to the parties is simply not there. The house in dispute as clearly shown by the evidence led on both sides in the course of the trial was well known to the parties inspire of the fact that PW 1 said it is located at No.1 Iro Street ado-Ado, Ado-Ekiti while DW1 named it as No.8, Ira Street Odo-Ado, Ado-Ekiti. This is because there is nothing from the record to show that these witnesses were giving evidence on different houses. Infact taking into consideration the evidence of DW 2 who testified for the appellants but whose evidence plainly supported the case of the respondents that the house in question is the family chieftaincy house for every Egbedi family member, the issue of the identity of the house had been clearly put to rest by the appellants themselves.
Although the learned counsel to the appellants in his brief of argument had listed down some different versions from the evidence of the respondents’ witnesses on how the house in question was built by the respondents’ family, each of these witnesses was only testifying to the part he played in the exercise of rebuilding the house. Therefore the differences observed by counsel in their evidence cannot be described as contradictions that may justify the rejection of the evidence of these witnesses. See Mogaji v. Cadbury (Nig) Ltd. (1985) 2 NWLR (Pt.7) 393, Ajani v. Ladepo (1986) 3NWLR (Pt.28) 276; Onyido v. Ajemba (1991) 4 NWLR (Pt.184) 203 and Adebayo v. Ighodaro (1996) 5 NWLR (Pt.450) 507 at 517. Thus the respondents’ evidence in support of their claims in the present case cannot be described as conflicting or contradictory to warrant regarding or treating such evidence as unsatisfactory.
As for the complaint of the appellants that the lower court did not properly appraise the evidence adduced before it before coming to the conclusion that the respondents had proved their case, there is no basis at all for this complaint from the record. The case of the respondents as presented to the lower court through the evidence of the 2nd plaintiff and 7 other witnesses was simply that the house in dispute is a chieftaincy house which belongs to the whole family including of course the appellants. The stand of the appellants however was that the house belongs personally to their deceased father who once held the family chieftaincy title of Egbedi. The resolution of this dispute is indeed essentially a matter of fact upon which the case was determined by the lower court after properly reviewing the evidence on record particularly the evidence of DW 2 who was called by the defendants/appellants but whose evidence clearly supported the case of the plaintiffs/respondents. A long line of cases beginning with Loeb v. Nasser 3 WACA 227, has laid down what the attitude of an appellate court should be to findings of fact made by the trial court. In the case of Ojo-Osagie v. Adonri (1994) 6 NWLR (pt. 349) 131 at 141-146, Ogundare JSC reviewed a number of cases decided by the Supreme Court on this subject and came to the conclusion at page 146 as follows:
“From these cases and many more, it is settled that an appellate court will not ordinarily interfere with the findings of fact made by a trial court except in certain circumstances such as where the trial court has not made a proper use of the opportunity of seeing and hearing witnesses at the trial or where it has drawn wrong conclusion from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they do not flow from the evidence accepted by it.”
See Okpiri v. Jonah (1961) 1 SCNLR 174; Maja v. Stocco (1968) 1 All NLR 141 at 149: Lawal v. Dawodu (1972) 8-9 SC 83 at 114-115; Balogun v. Agboola (1974) 10 SC 111 at 118 – 119 Woluchem v. Gudi (1981) 5 S.C. 291 at 295-296 and Ekwealor v. Obasi (1990) 2 NWLR (Pt. 131) 231.In the present case, the findings of fact made by the learned trial Judge that the house in dispute is a chieftaincy house of the Egbedi family built by the Egbedi family where all reigning Egbedis lived with wives and children after installation as an Egbedi and to be vacated by the family of a deceased Egbedi for the incoming Egbedi and his wives and children are adequately supported by the evidence. Therefore the judgment of the lower court in this respect in favour of the respondents is quite in order and as such there is no reason whatsoever for me to interfere with it.
In the result, I find no merit at all in this appeal which I hereby dismiss with Three Thousand Naira (N3, 000.00) costs in favour of the respondents.
Other Citations: (1998)LCN/0446(CA)
