Raimi Akande & Ors V. Busari Alagbe & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ONALAJA, J.C.A.

The plaintiffs issued a writ against four defendants individually whilst plaintiffs sued for themselves and on behalf of Orukotan family there by in a representative capacity at the High Court of Oyo State holden at Oyo High Court in Oyo Judicial Division of Oyo State. The writs were served on the four defendants personally and individually. After services on defendants pleadings were filed, delivered, exchanged and amended with the result that the trial was concluded on amended pleadings. In the process of exchange of pleadings, the four defendants retained joint legal representation and applied High Court of Oyo State Civil Procedure rules to set up a counter-claim against the plaintiffs.

The amended pleadings are simply referred to as statement of claim, to be found at pages 10 to 13 of the record of appeal. The statement of defence and counter claim are at pages 14 to 17 of the record of appeal whilst the reply to the statement of defence and counterclaim covers pages 18 and 19 of the record of appeal.

As it is now settled law in our civil jurisprudence that the claim in the statement of claim supersedes the particulars of claim endorsed in the writ of summons. Plaintiffs’ claims are as pleaded in the statement of claim in particular in the following paragraphs of the statement of claim:

The 1st plaintiff is the head of Orukotan Family of Oyo.

2. All the plaintiffs are principal members of Orukotan family and they have the authority and consent of all the other members of Orukotan family to institute this action in a representative capacity for themselves and on behalf of all the other members of Orukotan family.
3. The 1st defendant is a trader of Ojutaiye village near Oyo, Oyo state.
4. The 2nd defendant is a petrol dealer of Egba Compound Isale Oyo, Oyo State of Nigeria.
5. The 3rd defendant is a farmer of Are Compound Oke Ona, Sango, Oyo, Oyo State of Nigeria.
6. The 4th defendant is a farmer of Legudu Compound Oyo, Oyo State of Nigeria.
7. The land in dispute is situate, lying and being at Kajola Lagbe along Odo Ogun River, Oyo, Oyo State of Nigeria and the same is more particularly described and edged ‘red’ on the attached plan No. APAT/OY/123/1987 drawn by Mr. A.B. Apatira Junior Licensed Surveyor. The plaintiffs shall rely on the said plan at the hearing of this action.
8. The land in dispute forms part of a vast area of land originally settled upon by one Orukotan who came from Oyo Ile to settle at the place now known and called Oyo Town.
9. The plaintiffs say that the said Orukotan was hunting on the land and later he started to farm on the land together with his children and other relations without let or hindrance and became owners of the same in accordance with Yoruba Native Law and Custom.
10. The said Orukotan died many years ago and was survived by many children and grandchildren including the plaintiffs herein now known and called members of Orukotan family upon whom the land devolved by way of inheritance in accordance with Yoruba Native law and Custom.
11. The plaintiffs say that the said Orukotan begat (1) Taiye (2) Agidanjobi (3) Fashola (4) Ojo Laba (5) Leke (6) Lanihun (7) Aina (8) Olaegbeode, (9) Titilola (10) Omolonu and (11) Opayemi.
12. Orukotan begat Laniwun who begat Arilomo who begat Aiyelagbe who begat Samuel Aiyelagbe who is the 1st plaintiff in this action.
13. Orukotan begat Arinola who begat Agidanjobi who begat Alagbe who begat Busari Alagbe who is the 2nd plaintiff herein.
14. Orukotan begat Olaegbede who begat Opayemi who begat Olaegbe who begat Amos who is the 3rd plaintiff herein.
15. Whereupon the plaintiffs claim against the defendants jointly and severally as follows;-

(1) A declaration that the plaintiffs are entitled to a customary right of occupancy over all that piece or parcel of land situate lying and being at Kajola Lagbe along Ogun River in Oyo State of Nigeria more particularly described and edged ‘red’ on composite plan No. APT/OY/123/1987 made by Mr. A.B. Apatira junior licensed surveyor.

(2) The sum of twenty thousand Naira (N20,000.00) being general and special damages for the acts of trespass committed by the defendants themselves, their agents and servants on the land verged ‘blue’ and ‘green’ in the attached plan No.APT/OY/123/1987.

(3) Perpetual injunction restraining the defendants by themselves, their agents and servants from committing further acts of trespass on the land in dispute verged blue and green and on the plaintiffs’ land verged ‘red’ in plan No.APT/OY/123/1987 aforesaid.”

The defendants pleaded to the statement of claim in their defence to the statement of claim and counterclaim in some paragraphs set out below:-

“2. With reference to paragraph 3 of the amended statement of claim the 1st defendant is a farmer at Kajola Ojutaiye village, Oyo.

3. With reference to paragraph 4 of the amended statement of claim the 2nd defendant is a contractor.
4. With reference to paragraph 5 of the amended statement of claim the 3rd defendant is a farmer at Kajola, Ojutaiye village, Oyo.
5. With reference to paragraph 6 of the amended statement of claim, the 4th defendant is a farmer at Kajola Ojutaiye village, Oyo.
6. With reference to paragraph 7 of the amended statement of claim, the land in dispute is situate, lying at Kajola, Ojutaiye along Odo Ogun River, Oyo and the 1st defendant’s land is verged red in plan No. GCS/160/OY89 on which the defendants will rely at the trial.
7. The land in dispute was granted to the father of the 1st defendant by Alaafin Ladigbolu of Oyo under Oyo native law and custom.
8. The father of the 1st defendant in his lifetime carried out extensive farming on the land and he planted some economic trees on the land.
9. The 1st defendant and his father have been in possession of the land for many years and their possession has never been challenged by the plaintiffs.
10. The father of the 1st defendant was in occupation of the land at the time of birth of the 1st defendant and the 1st defendant alone started to farm on the land when his father became old.
11. The father of the 1st defendant had customary tenants on the land in dispute in his lifetime and on his death the 1st defendant and his brother inherited the land.
12. When the 1st defendant’s title was challenged by one Mogaji Alabi, the 1st defendant sued the said Mogaji Alabi in the Customary Court, Akeesan, Oyo.
13. The 1st defendant was adjudged the owner of the land by the said Customary Court. The 1st defendant will rely on the records of proceedings and judgment of the said customary court.
14. Being dissatisfied with the court’s decision, Mogaji Alabi took the dispute to the then Alaafin of Oyo, Oba Adeyemi III who also decided in favour of the 1st defendant.
15. The 1st plaintiff’s father Aiyelagbe gave evidence in favour of the 1st defendant before the Alaafin and he (1st plaintiff’s father) duly attested a document to this effect together with the Alaafin, and others. The defendants will rely on this document at the trial.
16. The cash crops of the 1st defendant on the land were set ablaze by the plaintiffs.
17. With reference to paragraph 18 of the amended statement of claim, the father of the 3rd defendant (Alimi Adio) was granted some parcel of land at Kajola, Ojutaiye, Oyo by the grandfather of the present Alaafin of Oyo, Oba Adeyemi I.
18. With reference to paragraph 19 of the amended statement of claim the plaintiffs set fire on the houses of the tenants of the 3rd defendant, the 4th defendant and the crops of the 1st defendant, consequently, a report of the malicious damages of the property of the defendants was made to the Police.
19. The defendants will at the trial of the suit rely on the doctrine of laches, acquiescence and standing by.
20. The defendants aver that the title of the plaintiffs to the land, if any had been extinguished under the Limitation Law of Oyo State and the right of the plaintiffs to recover the land is statute barred under the limitation law of Oyo State.
21. Whereof the defendants say that all the plaintiffs’ claims are vexatious, speculative, misconceived and should be dismissed with substantial costs.

Counter claim.

46. The defendants aver paragraphs 1.45 of the further amended statement of defence.
47. Whereof the 1st defendant’s claim against the plaintiffs is for a declaration that the 1st defendant is the owner and entitled to a customary right of occupancy over all that piece or parcel of land situate lying and being at Kajola Ojutaiye, Oyo, Oyo State of and more particularly described and verged red in plan No. GCS/160/OY89.”

The plaintiffs replied to the statement of defence and counterclaim in their reply in the undermentioned paragraphs as follows:-

“1. The plaintiffs joined issues with the defendants on all paragraphs of the counter claims and put the defendants’ counter claimants to proof of all the averment contained in the statement of defence and counterclaims.

2. In answer to paragraph 7 of the statement of defence, the plaintiffs say as follows:-

(a) That the Alaafin Ladigbolu of Oyo has no power under Oyo native law and custom to grant the land in dispute to the father of the 1st defendant’s ancestors.

(b) That the said Alaafin Ladigbolu is not the owner of the vast area of land situate, lying and being at Kajola Lagbe along Odo-Ogun River in Oyo State of Nigeria as the land in dispute is vested in the ancestors of the plaintiffs from time immemorial.

(c) That Alaafin Ladigbolu did not grant the land in dispute to the ancestors 1st defendant.

4. The plaintiffs will contend at the hearing of this action that Orukotan, the plaintiffs’ ancestors was one of the warriors who came with Alaafin Atiba from Oyo Ile and that he settled on the land in dispute immediately he got to Ago Oja with Alaafin Atiba.
5. In answer to paragraphs 24 and 25 of the further amended statement of defence and counterclaim, the plaintiffs say that the father of the 3rd defendant had no farmland on the land in dispute which the 3rd defendant could inherit and that Alimi Adio has no farmland on the land in dispute which he could grant to the 4th defendant.
6. In answer to paragraphs 37 and 38, of the further amended statement of defence and counterclaims the plaintiffs say that there was no time one Odesilo of Dijo village gave any piece of land to Orukotan and that Orukotan came from Oyo Ile to settle on the land in dispute.
7. Whereupon the plaintiffs will contend at the hearing of this action that the counterclaim is frivolous, vexatious and should be dismissed with substantial costs to the plaintiffs.”

The above reflects the pertinent averments as pleaded in the pleadings and upon which the parties predicated their cases and upon which they joined issues. The appellants and respondents sought declarations respectively to customary rights of occupancy as reflected in the survey plans admitted as Exhibits ‘E’ and ‘A’ for appellants and respondents respectively.

To establish their case respondents called 7 witnesses who testified in line with the averments in their pleadings. The respondents tendered the survey plan of the land claimed by them as the land in dispute which survey plan was admitted through the licensed surveyor the 3rd plaintiffs witnesses and marked Exhibit ‘A’. All respondents’ witnesses after giving their testimonies in chief were cross examined by learned counsel for respondents. The 1st respondent testified as 7th plaintiffs witness.

Appellants on their part called 11 witnesses in support of their defence to respondents’ case and to establish the counter claim set up by them. Documentary evidence marked Exhibits ‘B’, ‘G’ and ‘D’ being judgments of Customary Courts and memorandum of land agreement were admitted in evidence through respondent witnesses. Exhibit E the survey plan of the land in dispute as claimed by appellant was admitted through the licensed surveyor of appellants who testified as 11th D.W. He testified that Exhibit “An was shown to him he did not compare the survey plans and did not make a composite plan. The witnesses of appellants were cross-examined by learned counsel for the respondents. The 3rd defendant testified as 8th defence witness whilst 1st defendant/appellant testified as 10th defence witness, through whom Exhibits ‘B’, ‘C’ and ‘D’ were admitted.

On conclusion of trial, learned counsel to the parties addressed the court extensively why judgments should be entered and given to their respective parties that they represented, after the addresses by the learned counsel to the parties the learned trial Judge adjourned for judgment.

On the 28th day of June, 1990 Okeyode- Adesina J in a considered judgment delivered his judgment covered by pages 48 to 66 of the record of appeal wherein he granted the reliefs of declaration of customary right of occupancy and injunction and awarded damages for trespass. The learned trial Judge dismissed the claims of appellants of grant of customary right of occupancy as claimed in paragraph 47 supra of the statement of defence and counterclaim.

Obviously, being dissatisfied with the said judgment, appellants timeously lodged an appeal to this court by filing the notice of appeal at pages 67 to 69 of the record of appeal wherein they formulated five grounds of appeal and furnished the particulars in accordance with the Court of Appeal rules.

Later, appellants sought leave of this court to amend their grounds of appeal which made them to rely eventually on further amended notice of appeal, wherein they raised seven grounds of appeal. Paragraph VI of the grounds of appeal raised the vital issue of challenge to the jurisdiction of the High Court to have adjudicated on the case for lack of jurisdiction. This issue was raised for the first time in this court and ground VI aforesaid reads as follows with its particulars:-

“‘VI’ The learned trial Judge erred in law in entertaining and granting all the claims of the plaintiffs when it was apparent that he lacked jurisdiction to adjudicate on the claims before him, which error has occasioned a miscarriage of justice.

Particulars

(a) It is trite law, that it is the plaintiffs’ claim that determines the jurisdiction of the court.

(b) The plaintiffs’ claim in the main was for a declaration of entitlement to a customary right of occupancy.

(c) Only the Customary Court has the exclusive jurisdiction to grant a declaration of a customary right of occupancy;

(d) The plaintiffs never contended that there was no customary court within jurisdiction covering the area where the land is situated.”

(The italics is mine).

In compliance with the rules of brief writing of this court, appellants amended with the leave of this court, appellants’ brief of argument which was filed in this court on 9th April, 1999. Similarly, respondents with the leave of this court filed amended respondents’ brief of argument on 27th October, 1999. When the appeal was argued learned counsel to the parties relied and adopted their brief of argument whilst appellants’ learned counsel urged the court to allow the appeal, his adversary pressed this court to dismiss the appeal.

In support of appellants’ case and in accordance with the rules of this court, appellants raised the undermentioned as the issues he is urging this court for determination in this appeal, at page 3 paragraph 3 in appellants, brief of argument:-

“3.00 Issues for determination

3.01 The appellants submitted/that the followings are the issues for determination in this appeal –

(i) Whether the trial court was not in error to have exercised jurisdiction over the respondents’ claim when it was evident that the court had no jurisdiction to do so? (Ground vi)

(ii) Whether the trial Judge properly evaluated the evidence adduced by parties before it and thereby came to the right conclusion?

(Ground i, iii, v and vii)

(iii) Whether the various acts of possession by the appellants could found the defences of estoppel laches and acquiescence? (Ground ii)

(iv) Whether the trial Judge was right to suo motu declare Exhibit D to be a forgery? (Ground iv).

(v) The respondents at page 4 paragraph 3 of amended respondents’ brief of argument raised the issues for determination thus:-

“3.00 Issues for determination

The issues for determination are as follows:-

3.01 Whether the trial court was not in error to have exercised jurisdiction over respondents’ claim?.

3.02 Whether the trial Judge properly evaluated the evidence adduced by parties before it and thereby came to the right conclusions? (Ground i, iii, v and vii).

3.03 Whether the various acts of possession by the appellants could found the defences of estoppel laches and acquiescence? (Ground (ii) …)

3.04 Whether or not the learned trial Judge had erroneously rejected the use of Exhibits ‘D’ in support of the case of the defendants?;

And if issue 4 is answered in the positive

3.05 Whether the rejection of Exhibit ‘D’ has misled the learned trial Judge in coming to a wrong decision in the above case?”.

It is common ground that both the appellants and respondents sought declaration under the Land Use Act for grant of customary rights of occupancy to land covered by Exhibits ‘A’ and ‘E’ respectively. As the learned trial Judge granted the relief sought by respondents whilst it refused the grant to appellants, they have now challenged for the first time in this court that the lower court not being a Customary Court lacked the jurisdiction to have proceeded to adjudicate on the case. It is whether the trial court had or lacked jurisdiction that were raised in issues one in both appellant’s and respondents’ briefs of arguments as stated above on issues for determination in this appeal.

It is trite law that once the challenge to the jurisdiction of a court is raised it must be considered first. The court which jurisdiction is being challenged will first of all assume jurisdiction whether it has or lacked jurisdiction see pages 30, 31, 32 and 33 of Commentaries from the Bench Part 1 by Onalaja, J (as he then was) in particular at page 32 thus:-

“When a court’s jurisdiction is challenged at any stage during proceedings or even for the first time in the Supreme Court, the court being challenged will assume jurisdiction to enquire into the question whether it has jurisdiction to hear the case or not. Anisminic v. Foreign Compensation (1969) 1 All ER. 208 HL; Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR 409 at 421; A-G. Lagos State v. Justice L. J. Dosunmu (1989) 3 NWLR (Pt.111) 552 SC, A.-G. of the Federation v. C. O. Sode & Two ors (executors of the will of Chief S.O.O. Sode (1990) NWLR (Pt.128) 500. see further Chief Munalayefa Aseimo & 2 ors v. Chief Tari Abraham & 13 ors. (1994) 8 NWLR (Pt.361) 191 at 221, 222; Dr. Tunji Braithwaite v. Grassroot Democratic Movement 1998 7 NWLR (Pt.557) 307.Applying the above to the instant appeal the Appellants submitted that the question of jurisdiction being fundamental that where none of the parties raised it the court suo motu must satisfy itself that it has jurisdiction before proceeding to determine the case see Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 413-454.

The determinant factor of jurisdiction is the writs of summons and statement of claim of the plaintiff Babalola v. Abdulkadir (1993) 3 NWLR (Pt.281) at 253, 262,264, A-G. Kwara State v. Olawale (1993) 1 NWLR (Pt.272) at 645, 674-675, Adeyemi v. Opeyori (1976) 9/10 Sc. 31. The Respondents sought declaration to customary right of occupancy as reflected above in the body of this judgment that whilst section 39 of Land use act Cap 202 conferred on the High Court over claims for statutory right of occupancy section 41 Land Use Act conferred grant of customary right of occupancy exclusively on Customary Court or Area Court as stipulated in section 41, Land Use Act Cap 202 laws of the Federation of Nigeria 1990 aforesaid as follows:-

“41. An area court or Customary Court or other court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of customary right of occupancy granted by a Local Government under this Decree and for the purposes of this paragraph proceedings include proceedings for a declaration of title to a customary right of occupancy and all laws including rules of court regulating practice and procedure of such courts shall have effect with such modifications as would enable effect to be given to this section.”

The respondents’ claim being a claim for a declaration to customary right of occupancy can only be determined by the Customary or Area Court and not the High Court as in the instant case so pronounced as follows by the Supreme Court in Oyeniran v. Egbetola (1997) 5 NWLR (Pt.504) 122 at 132, 135 and 140 wherein it concluded as follows:-

“…under Section 41 of the Land Use Act, the High Court of a State has no original jurisdiction in proceedings in respect of Customary right of occupancy granted by a Local Government in that State. The matter may reach the High Court on appeal see Salati v. Shehu (1986) 1 NWLR (Pt.15) 178; Sadiku v. Dalor; (1996) 5 NWLR (Pt.447) 151; Uzondu v. Uzondu (1997) 9 NWLR (pt.521) 466; Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) 179”

Learned counsel for appellants concluded and submitted that as the trial court lacked jurisdiction the proceedings before it in respect of Respondents’ claims was conducted without jurisdiction therefore it was a nullity. See Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527 at 541 SC.

Respondents could have taken refuge under the exception in case of Oyeniran v. Egbetola supra and Ogigie v. Obiyan supra that the High Court would have jurisdiction where there is no Customary or Area Court in the area where the land is situated or located. As respondents have the burden to establish that their case fell within the exception this they failed to do having not pleaded it.

For the above submissions the issue be resolved against respondents as the High Court lacked original jurisdiction therefore appellant’s appeal be allowed. The learned counsel for respondents submitted that endorsement in the writ of summons and statement of claim showed that respondent sought and was granted by the trial court declaration to Customary Right of Occupancy in respect of land claimed and covered in Exhibit ‘A’. By the Land Use Act courts can no longer grant as before its promulgation declaration of title to land it can only grant now declarations to statutory right of occupancy and customary right of occupancy.

That Customary Courts of Oyo State lacked jurisdiction to grant statutory right of occupancy. The High Court under the constitution had unlimited jurisdiction prior to the introduction of Land Use Act to grant declaration of title to land which covered lands both in urban and rural areas, to oust the jurisdiction of the High Court in grant of customary right of occupancy it must be stated in clear terms having not ousted the jurisdiction of the High Court in clear terms the High Court retained jurisdiction so decided the case of Aseimo v. Abraham (1994) 1 NWLR (Pt.361) 191 at 213 and 221 wherein it referred to, followed and distinguished the cases of Ebuteh v. Obiki (1992) 5 NWLR (Pt.243) 599; Salati v. Shehu (1986) 1 NWLR (Pt.15) 198. He relied and quoted extensively the contribution and pronouncements of Onalaja, J.C.A. in Aseimo v. Abraham supra in particular pages 221, 222, 223, 224 and concluded that High Court has jurisdiction to grant customary right of occupancy. So this Court should reject the contention of appellants that the High Court lacked jurisdiction to have entertained the action as lacking in substance.

Respondents relying on the case of Engineering Enterprises v. Attorney General Kaduna State (1997) 2 NWLR (Pt.57) 381 that courts are set up to do substantial justice that as there Customary Court in Afijio Local Government where the land in dispute is located, by virtue of the nature of the case and law, the complicated identity of the land by composite plan which appellants failed to make notwithstanding that respondents’ survey plan was served on them, the filing of a composite plan shall be too technical for the customary Court, so by doing substantial justice, this court should hold that the High Court had jurisdiction and reject appellants’ contention as lacking in substance.

This is the summary of the contentions of the parties on the issue of challenge to the jurisdiction of the High Court on the vexed question of interpretation of section 41 of the Land Use Act Cap 202 Laws of the Federation of Nigeria 1990.

It is trite law that the issue of lack of jurisdiction of a competent court may be taken at any stage of the proceedings even for the first time on appeal in this court or the Supreme Court as jurisdiction is the bedrock, foundation, life blood and life wire of adjudication before a competent court. Bronik Motors Ltd. & Anor v. Wema Bank (Nig.) Ltd. (1983) 6 SC. 158-358, (1983) 1 SCNLR 296, Madukolu v. Nkedilim (1962) 1 All NLR (Pt.4) 597, (1962) 2 SCNLR 341, A-G. Lagos State v. Hon Justice L. J. Dosunmu supra, Cardoso v. Daniel (1986) 2 NWLR (Pt.20) 1 SC; Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt.51) 506 SC; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 517 SC; Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172 SC; Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129 SC; The State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt.22 1) 33 SC; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508 SC.

Above authorities signified that lack of jurisdiction is to be used as a sword and not as a shield more especially by a defendant who has not set up a counter-claim as in the instant case. The issue of challenge to the jurisdiction must be made in good faith not malafide. Appellants having set upon counter claim in the High Court where their counterclaim was dismissed did not challenge the jurisdiction of the trial court. Appellants also sought declaration of customary right of occupancy in respect of land covered by Exhibit ‘E’. The counterclaim was dismissed on the merits.

It is trite law that in the determination of challenge to the jurisdiction of a competent court it is the writ of summons and the statement of claim that are considered not the defence so stated the Supreme Court recently in Efunwape Okulate (For Demike Family) & 4 Ors. v. Gbadamosi Awosanya & 2 ors (for themselves and on behalf of Olisa family) (2000) 2 NWLR (Pt.646) 530 at 555-556 wherein it was stated that:-

“…it is the claim before the court that has to be looked at or examined to ascertain whether or not a court is possessed with the jurisdiction to hear and determine a matter before it (Izenkwe v. Nwadozie (1953) 14 WACA 361 at 363;Adeyemi v. Opeyori (1976) 9/10 SC; 31 at 51 Tukur v. Government of Gongola State (supra) Egbuonu v. BRTC 1997 12 NWLR (Pt.531) 21 at 43 referred to).

Applying the above to this case, it is common ground that respondents sought grant to declaration of customary right of occupancy, in respect of land covered by Exhibit ‘A’. In like manner appellants sought grant to declaration of Customary Right of Occupancy in respect of land covered by Exhibit ‘E’ in their counterclaim.

A counter claim is a distinct cause of action and has all the tapestry of an action. A counter-claim is a weapon of offence which enables a defendant/appellant in this appeal to enforce a claim against the plaintiff as effectually as in an independent action. It must be directly related to the principal claim but not outside of and independent of the subject matter of the claim. Oyegbola v. Esso West Africa (1966) 1 All NLR 170 SC, Andrew Nweke Okonkwo v. Cooperative and Commerce (Nig.) Plc. & 2 Ors. (1997) 6 NWLR (Pt.507) 48 at 73 CA.

From the foregoing, appellants’ challenge to the jurisdiction of the lower court is to approbate and reprobate and made malafide under the anchor of section 41 of Land Use Act Cap 202, supra. The attitude and complaints of the appellants make the comments of the Court of Appeal by Onalaja, J.C.A in Aseimo v. Abraham (1994) 8 NWLR (Pt.361) 191 at 222 to be apposite as follows:-

“It is preposterous and astonishing for a plaintiff (in the instant appeal, a counter claimant) who lost a case instituted and commenced by him in the lower court to raise on appeal that the lower court which forum was his choice to say on appeal that simply because he lost the case to now urge on appeal that he instituted the action (the counterclaim in this appeal) in a court which lacked jurisdiction. Was the wrong commencement a genuine error or mistake, due to lack of knowledge of the law, which can only be pardonable where the law is recondite or not free from doubt or was he blindfolded?. See Ojora v. Odunsi (1964) NMLR 12 at 16. Challenge to the jurisdiction of a competent court is a very serious matter and not to be made lightly or malafide. For a plaintiff (equally a counter-claimant as in the instant appeal) to challenge on appeal that the lower court where he commenced an action (or set up a counter-claim) lacks jurisdiction in my judgment is a gross abuse of the process of court. The matter is more serious and grievous in a consolidated action as in the instant appeal where the appellant was defendant but failed to raise the issue of jurisdiction of the action to be consolidated with the plaintiffs’ claim by objecting to the consolidation on lack of jurisdiction.

The formulation of the issue for determination on lack of jurisdiction by learned counsel for the appellant raised the issue of duty of counsel to the court, his client and justice as it is to me gross negligence on the part of counsel to a plaintiff simply because he lost a case in the lower court to say the court he commenced the action lacked jurisdiction.”

All courts are creatures of the constitution and State laws, it is the law that creates the court that spells out the jurisdiction of the court.

The jurisdiction of the High Court is setout in section 272(1), 273,1999 Constitution of the Federal Republic of Nigeria as under:-

“272(1) Subject to the provisions of section 251 and other provisions of this constitution the High Court of a State shall have jurisdiction to hear and determine only civil proceedings in which the existence or extent of a legal right power, duty, liability, privilege, interest, obligation, or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of an offence committed by any person.”

(273) For the purpose of exercising any jurisdiction conferred upon it under this constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that court.

It is pertinent to state that jurisdiction is not defined under section 318 of the interpretation section of 1999 Constitution. It is the law that the constitution be given liberal interpretation as per Sir Udo Udoma, J.S.C in Nafiu Rabiu v. Kano State (1980) 8/11 SC. 149:-

“My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been one of liberalism, probably a variation of the general maxim ut res magis valeat quam pereat (Translated as that the matter may have effect rather than fail). I do not conceive it to be the duty of the court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”

See further A-G. Bendel State v. A-G. Federal & 18 Ors. (1981) 10 SC 1 at 132-134, Senator Abraham Adesanya v. President Federal Republic of Nigeria (1981) 5 SC. 112 at 176 per Obaseki, J.S.C.

“The need for liberal approach to the interpretation of the provisions of the 1979 constitution is paramount and the case of Nafiu Rabiu v. The State (1980) 8/11 SC. 130 has set the pace. The dictum of Sir Udo Udoma, J.S.C cited by my learned brother Fatayi Williams CJN, which met with the unanimous approval of the other Justices who heard the appeal will for a long time be the approach of the court in this country.”

What is jurisdiction of a court? It is defined by Obaseki, J.S.C in A-G. Lagos State v. Hon. Justice L.J. Dosunmu (1989) 3 NWLR (Pt.111) 552 at 602 as follows:-

“Jurisdiction is defined as

(a) dignity which a man hath by a power to do justice in a cause or complaint made before him,

(b) in its narrow sense, the limits which are imposed upon the power of a validly constituted court to hear and determine issues to avail themselves of its process by reference to –

(i) the subject matter of the issue or

(ii) the persons between whom the issue is joined or

(iii) the kind of relief sought

(c) in its wider sense, the way in which the court will exercise the power to hear and determine the issues which fall within its jurisdiction or as to the circumstances in which it will grant a particular kind of relief which it has jurisdiction to grant, including its settled practice to refuse to exercise such powers or to grant such relief in particular circumstances.

(iv) Courts should guard their jurisdiction zealously and jealously but if in any given case that jurisdiction has been ousted by the provisions of the constitution or a Decree or Act then the path of constitutionalism dictates a willing compliance with the ouster clause.”

The guide for the court or tribunal in its approach to challenge to its jurisdiction are the six principles enunciated by Oputa, J.S.C in African Newspapers of Nigeria & Ors v. The Federal Republic of Nigeria (1985) 1 All NLR (Pt.1) 150 at 171; (1985) 4 SC. (Pt.1) 76 – 141 at 122.

“The quarrel over the jurisdiction of courts is by no means new but these quarrels have left certain significant beacon lights to guide the courts when dealing with jurisdiction or the lack of it (i) Judges ought not to encroach or enlarge their jurisdiction because by so doing the courts will be usurping the functions of the legislature per Holt CJ in Ashby v. White (1703) Lord Raym 938.

(ii) Nothing shall be intended to be out of the jurisdiction of the superior court, but that which specifically appears to be so, and on the contrary nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged Peacock v. Bell and Kendall (1667) 1 Sound 74

(iii) Although the courts have great powers yet these powers are not unlimited. They are bound by some lines of demarcation Abbott CJ in The King v. Justices of Devon 18191 Chit Rep 37.

Courts are creatures of statutes and the jurisdiction of each court is therefore confined, limited and circumscribed by the statute creating it.

(iv) The court is not hungry after jurisdiction – Sir William Scott The Two Friends (1799) 1 C Rob Ad Rep 280.

(v) Judges have a duty to expound the jurisdiction of the court but it is not part of their duty to expand it Kekewich J in re Montagu (1897) LR 3 ICD (1897) P 693.

(vi) A court cannot give itself jurisdiction by mis-construing a statute Pollock B in Queen v. County Court of Linconshire and Dixon (1887) LJ NS 57 QBD 137″

Using the above beacon lights the issue is whether by the provision of Section 41 Land Use Act Cap 202 Laws of the Federation 1990 the High Court lacked original jurisdiction. Let me reiterate that our discussion all along was jurisdiction of the High Court which is clear and distinct from the judicial power invariably the two are used interchangeably.

The distinction was spelt out by Idigbe, J.S.C in Bronik Motors Ltd. & Anor v. Wema Bank Nig. Ltd. (1983) 6 SC. 158 (1983) 1 SCNLR 296:-

“That although the terms Judicial Power and Jurisdiction are frequently used interchangeably jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit” there is a clear distinction between the two concepts and that jurisdiction is the authority of a court to exercise judicial power which is the totality of powers a court exercises when it assumes jurisdiction and hears a case. Judicial Power, as is well known is indeed a very wide expression, for apart from its meaning as the power which every sovereign authority must of necessity possess to enable it settle and decide controversies between its subjects and also between its subjects and itself (see Griffith CJ in Huddart, Parker & Co. Ltd. v. Moorehead (1909) 8 CLR 330 at 357 (in which to be found the definition of the subject, universally acknowledged as adequate). It is also co-extensive with the power of the state to make laws and execute them as well. (see Isaacs J. in Huddan Parker & Co. Property Ltd. v. Moorehead (1909) 8 CLR at 383.”

Section 41 Land Use Act aforesaid is a section of the Land Use Act which was incorporated both to the 1979 and 1999 Constitutions of Nigeria as provided in section 315. (1) 4D (5) and (6) as follows:-

“315(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of the constitution and shall be deemed to be (a) and (b).

(4) In this section, the following expressions have the meanings assigned to them respectively (b) ‘existing law’ means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date;

(5) Nothing in this Constitution shall invalidate the following enactments that is to say (d) the Land Use Act and the provisions of these enactments shall continue to apply and have full effect in accordance with their tenor and to the like extent as any other provisions forming part of this Constitution and shall not be altered or repealed except in accordance with the provisions of section 9(2) of this Constitution

(6) Without prejudice to sub section (5) of this section the enactments mentioned in the said sub section shall hereafter continue to have effect as Federal enactments and as if they related to matters included in the exclusive legislative list set out in part 1 of the second schedule to this constitution.”

The above was judicially considered under the 1979 Constitution which are similar to the above section 315 and its subsection by full Supreme Court by majority of six to one in the case of Chief R.O. Nkwocha v. Governor of Anambra State and 2 Ors. (1984) 1 SCNLR 634; (1984) 6 SC. 362 – 419 was a case by reference under section 259(3) with question 4 posed as follows:-

“… In view of the provisions of section 274 (6) of the constitution (now 315(6) of (1999) Constitution supra) that the Land Use Act shall continue to have effect as a Federal enactment as if it related to a matter in the exclusive legislative list, has the High Court of a State jurisdiction to entertain plaintiffs claim it was held that-

(2) The Land Use Decree (1978) was a law in force in each state in the Federation of Nigeria on 30th September, 1979 immediately before the 1979 Constitution came into force on 1st October 1979 and by virtue of the definition of existing law in section 274(4) (b) of the 1979 Constitution it became an existing law (Land Use Act) a special Federal enactment which has been accorded an extra ordinary status by sections 274(5) and (6) of the 1979 Constitution.

(3) The Land Use Act is not an integral part of the Constitution but claims the special protection of section 9(2) of the 1979 Constitution in terms of its amendment.” The decision of the Court of Appeal Ilorin Division in Mustapha Ajao & Anor v. Chief Yesufu Abioye Odofin (1999) 12 NWLR (pt.632) 471 at 480 wherein it was stated the Land Use Act by virtue of section 274(5) of the 1979 Constitution the Land Use Act 1978 as an entrenched part of that constitution is an integral part of the 1979 Constitution runs contrary to the decision of the Supreme Court in Chief R. O. Nkwocha v. Government of Anambra State was not cited before the Court of Appeal. As the decision in Ajao v. Odofin runs contrary to the judgment of the Supreme Court it is an exception to the general rule under Young. v. Bristol Aeroplane Co. Ltd. (1944) KB 718; Pascal & Ludwig Inc v. A.T. Kiren (1975) 1 NMLR 74 to depart from the previous or overrule its previous judgment, leading me to prefer Aisemo v. Abraham (1994) 1 NWLR (pt.361) 223.

Still on the incidence of the promulgation of the Land Use Act the full Supreme Court confirmed its previous decision in Salami v. Oke (1987) 4 NWLR (Pt.63) 1 at 13 in Gamba Abioye & 4 Ors. v. Sa’adu Yakubu & 5 Ors. (1991) 5 NWLR (Pt.190) I at 130 – 256 that by section 1 of the Land Use Act vests the Governor of each state all the land in the state to be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of the decree.

In Okulate v. Awosanya supra section 10(1) High Court Law of Ogun State concluded the proviso that:-

“The High Court shall not exercise original jurisdiction in any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, of children and inheritance or disposition of property on death.”

The Supreme Court confirmed its previous decision in Chief Daniel Awodele Oloba (for and on behalf of Sapetu family v. Isaac Olubodun Akereja (1988) 3 NWLR (Pt.84) 508 in Okulate v. Awosanya supra

“(5) It was the 1979 Constitution that conferred unlimited jurisdiction on the High Court of a State and not a State law. This implies that no State can take away the jurisdiction conferred by the entire Federationon State High Courts (Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 referred to).

6. The State High Court had unlimited jurisdiction to hear and determine any cause or matter unless specifically precluded by the Constitution or any other appropriate enactment as long as it retains its potency (such as a Decree) from exercising such jurisdiction.

Thus, any law of a State which is in conflict with section 236(1) of the 1979 Constitution becomes null and void. In this case the proviso to section 10(1) of the High Court law of Ogun State to the extent that it seeks to limit jurisdiction of the High Court as provided by section 236 of the 1979 Constitution is unconstitutional and therefore to the extent of the conflict is void and the High Court had jurisdiction to determine in the case as it did (Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Savannah Bank of Nig. Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt.49) 212 referred to and applied.)

Section 1(3) 1999 Constitution provides as follows:-

“(3) If any other law is inconsistent with the provisions of this Constitution shall prevail and that other law shall to the extent of the inconsistency be void.”

My understanding of the above being a constitutional provision shall be given a liberal interpretation as laid down in Nafiu Rabiu v. The State supra that the Land Use Act not being an integral part of the constitution comes within the provision of any other law under section 1 (3) 1999 Constitution so any inconsistency with the provision in Land Use Act contrary to the Constitution shall to the extent of the inconsistency be void. By virtue of section 272(1) the State High Court has unlimited jurisdiction. It is my understanding that section 41 of Land Use Act delimiting the jurisdiction of the State High Court runs contrary to section 1 (3) 1999 Constitution and is to the extent of the inconsistency void and it is hereby declared null and void; thereby I hold that the High Court has concurrent jurisdiction with the Customary Court and Area Court over right to customary right of occupancy. After this exhaustive consideration of issue 1 in appellants’ case, I come to the irresistible conclusion following the reasoning and conclusion of the Court of Appeal in Aseimo v. Abraham supra that I prefer it and follow the case thereby I reject issue 1 in appellants’ brief of argument against appellants whilst I resolve issue 1 in respondents’ brief in favour of the respondents.

The appellants’ attack on the judgment of the lower and trial court in issue 2 was the failure of the learned trial Judge to properly evaluate the evidence adduced by the parties by not taking advantage of having heard and saw the witnesses before making specific findings on the witnesses and failed further to give reasons for such findings.

On the contrary the learned trial Judge lumped up respondents’ case and merely stated:-

“On the evidence before me, the plaintiffs have shown better title to the whole area claimed in Exhibits ‘A’ edged ‘Red’ including the area trespassed upon by the 1st defendant, 3rd defendant and their so called tenants.”

The learned trial Judge did not make specific findings of fact based on his belief of the witnesses and the witnesses he did not believe by giving reasons for reaching his conclusion, as stated in Ojogbue v. Aje Nnubia (1972) 1 All NLR (pt.2) 226 at 232; Kerewi v. Odegbeson, SAN (1965) 1 All NLR 93; Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511 at 539. As the lower court did not specifically assess each witness and to make findings on each witness with reasons for the finding applying Ebba v. Ogodo (1984) 4 SC. 84 at 98,(1984) 1 SCNLR 372; Moran v. Okwuanyanga (1990) 1 NWLR (pt.125) 225 at 234 this appeal court should re-assess and re-evaluate the evidence from the printed record and make proper findings in favour of appellants and allow the appeal.

The issue 2 formulated by respondents touched on assessment, and evaluation of evidence and very similar to issue 2 raised by appellants. A perusal of the record of appeal carefully respondents submission showed that the learned trial Judge meticulously assessed and evaluated the pieces of evidence of all witnesses and made proper findings.

respondents based their case on traditional evidence of settlement under Yoruba native law and custom coupled with numerous and positive acts of ownership with undisturbed and exclusive possession, it was when appellants disturbed respondents’ exclusive possession that led to the claim against appellants with the entry of judgment in favour of all the claims of respondents as appellants were dissatisfied gave rise to this appeal.

Respondents relied and established their claims by settlement under Yoruba native law and custom and long ownership coupled with undisturbed possession which are two out of the five methods of proving title to land in Nigeria, it is trite law that establishment of one out of the five ways was sufficient to grant respondents’ relief which the learned trial Judge rightly granted after assessment and evaluation of the evidence adduced before him as the learned trial Judge found that:-

“On the evidence before me, the plaintiffs have shown better title in the whole area claimed in Exhibit ‘A’ edged ‘red’ including the area trespassed upon by the 1st defendant, the 3rd defendant and their so called tenants.”

The above being proper findings of fact, this Honourable Court should uphold the findings and reject the attack against the judgment based on non assessment and non evaluation of evidence as of no substance thereby rejection of Appellants’ complaints and to dismiss the appeal.

At pages 48 to 63 of the record of appeal, the learned trial Judge sets out the testimonies of the seven plaintiffs’ witnesses and 11 defence witnesses by setting in a summary form the testimonies of each witness in the evidence in chief and under cross examination for example as follows:-

“The 1st PW was Chief Joshua Ogundele who averred that he is the Baale Odo Ogun Fasina village where he resides. He further averred that River Ogun divides their own land and that of the plaintiffs. He further stated that they had been boundary men since the time Alaafin Agogoja the father of Alaafin Ladigbolu I. To his knowledge, nobody had disturbed the plaintiffs since then. The land in dispute is at Kajola Laagbe village. Orukotan was the original owner of the land in dispute. He knew the 1st defendant when this case started but does not know the other defendants.

Under cross examination the witness said that he started to live at Fasina village about 10 years ago. Orukotan the ancestor of the plaintiffs told their ancestor Fasina that the land was granted to him by Alaafin Agogoja. He knew that the land in dispute is a large expanses of land. He knew the goings on the land when he was invited by the plaintiffs. Their own land was granted to them by Aseyin. He denied knowing Okeyoyin.

At page 59 of the record he recorded as follows:-

“The 11th and last witness for the defence was Mr. S. O. Adeaga Licensed Surveyor who was commissioned by the 1st defendant to survey his family land. He carried out the survey and produced a plan a copy of which he tendered as Exhibit ‘B’. He averred that the land in dispute is located near Ojutaiye village in Oyo. The 1st defendant’s land is edged ‘red’ in Exhibit ‘E’. He reflects certain features on the land in Exhibit ‘E’. The 3rd defendant is shown to be a boundaryman in Exhibit ‘E’.

Under cross-examination the witness said that he became a licensed surveyor in 1982. He was shown Exhibit ‘A’ at the time he received instructions from the 1st defendant. Exhibit ‘E’ is part of the area being claimed by the plaintiffs. He has not married Exhibit ‘A’ with Exhibit ‘E’ in the plan he submitted to the 1st defendant, but he has just drawn it. He was not instructed by the 2nd to 4th defendants hence he has not shown their holdings in Exhibit ‘E’ except where their land forms boundary with that of the 1st defendant. He charted the plan. He personally visited the land in dispute.

The defence then closed their case and both counsel then addressed the court.”

The learned trial Judge then proceeded to make a summary of the addresses of the learned counsel to the parties and concluded the summaries at page 63 of the record of appeal and stated in the last paragraph of page 63 as follows at pages 63, 64, and 65 of the record that:-

“I will now evaluate the evidence of the traditional history as presented by the plaintiffs and their witnesses on one part and the defendants and their witnesses on the other part.

It is the pleading and evidence of the plaintiffs that their progenitor Orukotan settled on area edged ‘red’ in Exhibit ‘A’ during his hunting expeditions. The evidence was confirmed by the 4th P.W. whose father was a customary tenant of Orukotan and who also founded a village within the area edged ‘red’ in Exhibit ‘A’. But the 1st P.W. a boundaryman on the other side of River Ogun said that Orukotan told his ancestor Fasina that the land was granted to him by Alaafin Agogoija. What is common with all the seven witnesses with the exception of the 3rd P.W. the licensed surveyor is that they all acknowledge that the plaintiffs are the owners of the area Edged ‘red’ in Exh. ‘A’. The 2nd, 4th, 5th and 6th P.W.s. are tenants most of whose families have villages dotted on the area Exhibit ‘A’.

The competing traditional history of the 1st and 3rd defendants is that their pieces of farmland were granted to them by Alaafin Ladigbolu 1 and Alaafin Adeyemi 1 respectively. The evidence was given by the 1st and 3rd defendants as 10th and 8th D.Ws. respectively. Their evidence was not corroborated by any of their witnesses. Rather the 1st D.W. Ogungbola Ajala Odesilo said that this Odesilo granted the land in dispute to Orukotan which forms boundary with their land. This is evidence against the interest. The 1st and 3rd defendants did not also call any of the descendants of their grantors as witnesses to come and confirm to the court the roots of their title. Although, there is no rule of law which lays it down that if a plaintiff is to call a member of the grantor’s family to testify on his behalf in a claim for declaration of title he must inevitably fail.

Such evidence will however, naturally be entitled to considerable respect and weight – See Alhaji Y. S. Ola Ishola v. E. I. Ogunjinmi & Ors. (Pt.1) (1974) U.I.L.R 1 at 4. Since the 1st defendant counterclaimed, he too is expected to prove his title to the area allegedly granted his ancestor in Exh. ‘E’. This evidence would have lent weight to his evidence of grant by Alaafin Ladigbolu II. His own witness the 1st D.W. rather than supporting him gave evidence that is contrary both to his pleading and evidence. Exh. ‘E’ does not even show any of the holdings of the 1st defendant’s tenants. There is also no village in such expanse of farmland.

The 1st defendant tendered Exhs. ‘B’, ‘C’, ‘C1’ and ‘D’ to show that he had got judgment on the land in dispute in Exh. ‘E’ and that the father of the 1st plaintiff was a witness to Exh. ‘D’.

In the first place this action was not between the plaintiffs and the 1st defendant as could be seen in the said documents Exhs. ‘B’, ‘C’, ‘C1’.

Secondly, I take Exh. ‘D’ with a pinch of salt which is a document headed “To whom it may concern”. The plaintiff denied the knowledge of it and a member of Alaafin Adeniran or a letter writer who prepared it if be alive is not called to testify about the authenticity of the said document.

Further, Exh. ‘D’ which was supposed to be prepared on 24th March, 1954 refers to a judgment which was given on 24th March, 1955. In other word, Exh. ‘D’ was prepared a year before judgment on which it acted upon was given. No plan was tendered in that case which could have been married with the present plan.

This could not be an estoppel by conduct. I also share the view of the learned counsel for the plaintiff that Exh. ‘D’ is a forgery. It might be that the 1st defendant got judgment against Fashina the area of which is not described in the judgment, but definitely not on the area now litigated upon.

Although both defendants led evidence of title and possession 2nd, 4th 5th, 6th 7th D.WS, who were supposed to be tenants put on the land by the 1st and 3rd defendants; there cannot be concurrent possession by two parties claiming adversely to one another. As is in this case, the party that establishes a better title to the land would be entitled to the ultimate possession. See S.A Ogunbiyi v. S. B. Adewunmi (1988) 5 NWLR (Pt.93) 215 at 217.

On the evidence before me, the plaintiffs have shown better title to the whole area claimed in Exh. ‘A’ edged ‘red’ including the areas trespassed upon by the 1st defendants 3rd defendant and their so called tenants. They are therefore declared to have the right to customary right of occupancy over the said area. The 1st and 3rd defendants’ possession of the area edged ‘green’ and ‘blue’ was merely physical occupation devoid of the right to possession and right of possession. This was more in the nature of trespass. See A. O. Makanjuola v. Hazan Khalil (1952) WNLR 149 also Ogunbiyi v. Adewumi (supra)

The defendants with the exception of the 2nd defendant agreed farming on the land in dispute without the permission of the plaintiffs. Trespass is an injury to possession so that anyone in possession can sue the whole world except the true owner or someone claiming through him. See Ekwere & Ors. v. Iyiegbu 7 Ors. (1972) 1 All NLR (Pt.1) 167.(1972) 6 SC 116

By entering into the area edged ‘green’ and ‘blue’ in Exh. ‘A’, and putting tenants on them including the 4th defendant, the 1st, 3rd and 4th defendants have committed acts of trespass for which they are liable to pay the plaintiffs the sum N3,000.00 as damages.

Since the 2nd defendant has not trespassed on the land, the claim against him is dismissed”.

Evaluation of evidence is peculiarly the function and duty of the trial court. It is incumbent on the trial court before it accepts or rejects evidence or disbelieves witness or witnesses, that it sets up an imaginary scale and puts the evidence of the plaintiff on one side of the scale. It shall also put the evidence of the defendant on the other side of the imaginary scale. The trial Judge is enjoined to weigh them, both together to see where the imaginary scale of justice tilts and where the evidence preponderates not by the number of witnesses called by each side but by evaluation and ascription of probative value. Mogaji v. Odofin (1978) 3/4 SC. 91 at 98; Bid Ezeogu v. Onwuchekwa (1997) 4 NWLR (Pt.502) 689; Musa v. Yerima (1997) 7 NWLR (Pt. 511) 27; Edward Ukaegbu Nwokoro and Anor (for themselves and as representing the family of Amarum Amaedina Nkpa) v. Ezekiel Nwosu & 5 ors (for themselves and as representing Agbue family in Umualaukocha Amaediba Nkpa) (1994) 4 NWLR (Pt.337) 172 at 194 CA; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 SC; Shell BP v. Cole (1978) 3 SC. 183; Woluchem v. Gudi (1981) 5 SC 291; Boni Guda & 2 ors v. Jumbo Kitta (1999) 12 NWLR (Pt.629) page 21 at 55 CA. The above entails and constitutes evaluation of evidence.

I have deliberately and advisedly reproduced the extract from the judgment of the learned trial Judge whether or not he evaluated the evidence before him properly, rightly or not and wrongly.

The attitude of appellate court to evaluation of evidence by trial court is that as stated above. Evaluation of evidence is primarily the function of the trial court. It is only where and when it fails to evaluate such evidence properly or at all that an appellate court can intervene, and itself re-evaluate such evidence. Otherwise where the trial Judge, or court has satisfactorily performed its primary function of evaluating evidence and correctly ascribing probative value to it, an appellate court has no business interfering with its finding on such evidence. In such a situation it is not the function or the business of a Court of Appeal to substitute its own views for the views of the trial court Woluchem v. Gudi (1981) 5 SC. 291.

After a careful consideration of pages 63 to 65 of the record of appeal the learned trial Judge, in my view and assessment evaluated the pieces of evidence properly and ascribed proper weight leading to apply the rule in Ebba v. Ogodo (1984) 1 SCNLR 372 and Woluchem v. Gudi supra and to reject Appellants attack on the judgment of the trial Judge that he did not evaluate the evidence adduced before him. For the said reason, issue 2 in appellants’ brief of argument lacks substance and unmeritorious. Respondents sustained issue two in respondents’ brief of argument.

The findings of fact of grant of customary right of occupancy covered by Exhibit ‘A’ was a rightful judicial exercise of discretion that a plaintiff in a declaratory order sought from the court, that he succeeds on the strength of his case and not the weakness of defendants’ case. Being exercise of judicial discretion, I see no legal basis to disturb the exercise of the grant of customary right of occupancy as they were borne out in law and fact.

Both issues 3 from appellants’ brief of argument and 3 from respondents’ briefs of argument revolve around the holding of fact that respondents were in possession when, appellants disturbed the possession, and whether laches, acquiescence were available for appellants. It is common ground that both parties lay claims to possession to the land in dispute marked red in exhibit ‘A’ as claimed by the respondents whilst appellants laid claim to possession as described in Exhibit ‘E’. It is trite law that as there cannot be concurrent possession, by rule of law possession is in the party that established better title.

In the instant appeal, the learned trial Judge found as a fact that Respondents had better title than the appellants being finding of fact, the finding of fact from the pleadings and evidence in my view is not perverse, as the finding was borne out from the printed evidence. As appellate court as the findings of fact were not perverse, I see no legal basis or justification to disturb the findings of fact Mr.Taiwo Ilori Ogun v. Mr. Moliki Akinyelu & 3 ors. (for themselves and on behalf of Osata Adasin family of Ijana quarters Otta Ogun State) (1999) 10 NWLR (Pt.624) 671 CA, Guda v. Kitta (supra), Abisi v. Ekwealor (1993) 6 NWLR (pt.302) 643 at 673, Whyte v. Jack (1996) 2 NWLR (Pt.431) at 407 CA, Polycarp Ubochi Nnadi v. Damian Ositadinma Chukwuemeka Okoro (1998) 1 NWLR (Pt.535) 573 at 602 CA; Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 10 SC.

Applying the above principles to the instant appeal issue 3 in appellants’ brief is unmeritorious, rejected and resolved against the appellants. With respect the adverse possession in my view do not constitute laches, acquiescense in law and fact. At page 65 of the record of appeal, the learned trial Judge commented as follows; the repetition is regretted-

“Further Exhibit ‘D’ which was supposed to be prepared on 24th March, 1954 refers to a judgment which was given on 24th March, 1955. In other word, Exhibit ‘D’ was prepared a year before judgment on which it acted upon was given. No plan was tendered in that case which could have been married with the present plan. This could not be estoppel by conduct. I also share the view of the learned counsel for the plaintiff that Exhibit ‘D’ is a forgery. It might be that the 1st defendant got judgment against Fasina the area which is not described in the judgment, but definitely not on the area now litigated upon.”

(The italics is mine).

The underlining that Exhibit ‘D’ was a forgery led appellants’ attack on the judgment as contended in issue 4, of Appellants’ brief of argument supra.

On the comments about Exhibit ‘D’ in reply to issue 4 of appellants’ brief of argument, respondents formulated issues 4 and 5 in their brief of argument as reflected above in this judgment.

The issues raised the importance of pleadings in our jurisprudence with the rule that both the courts and the parties are bound by their pleadings as unpleaded facts go to no issue. Abimbola George & Anor v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 73 Sc. George & Anor v. United Bank for Africa Ltd. (1972) 8/9 SC. 264.

It is common ground that the parties neither pleaded nor join issues under the rules in Lewis & Peat NRI Ltd. v. Akhimien (1976) 7 Sc. 157 on Exhibit ‘D’ being a forgery having not pleaded it as a forgery, it goes to no issue therefore the comment about Exhibit ‘D’ is of no moment and non sequitur. In any event the comment about Exhibit ‘D’ was obiter dictum, as no finding of fact was based on Exhibit ‘D’ being a forgery. Assuming, it was a misdirection or error in law it is not every misdirection or error in law shall affect the decision of the appeal court to set aside such finding unless it amounts to substantial miscarriage of justice which with respect in the instant appeal in my assessment does not amount to substantial miscarriage of justice, therefore issue 4 raised in Appellants’ brief of argument fails as appellants made too much ado about the comment of the learned trial Judge that Exhibit ‘D’ was a forgery. Furthermore, it did not meet the burden of proof under section 138(1) Evidence Act Cap 112 Laws of the Federation of Nigeria 1990. The issue is therefore resolved against appellants as lacking in substance.

In conclusion, as all the 4 issues raised by appellants in appellants’ brief of argument are resolved against appellants for the reasons given above in this judgment, the appeal of the appellant stand dismissed and is hereby dismissed.

Having dismissed the appeal the respondents are entitled to costs which I fix at N5,000.00 (five thousand Naira) in favour of respondents against appellants. In fixing the costs, I acted on the principle of law that award of costs is to compensate the successful party and not to punish the unsuccessful party.

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Other Citations: (2000)LCN/0769(CA)