Ramonu Rufai Apena & Anor V. Oba Fatai Aileru & Anor (2014)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal number CA/L/404/98 delivered on 30th November, 2000 wherein the lower court set aside the judgment of the trial High Court and entered judgment for the present respondents. Dissatisfied with the decision of the Court of Appeal setting aside the judgment they won, the appellants have appealed to this court. A synopsis of the facts will suffice.

The respondents were the plaintiffs in suit No. LD/1727/88 at the Lagos State High Court and claimed against the 1st appellant (as 1st defendant) following reliefs:

“(1) The sum of N200.00 (Two Hundred Naira) being special and general damages for trespass committed by the defendant by himself, his servants, workmen, assigns, privies and agents or otherwise howsoever on all that piece or parcel of land situate, lying and being at Amu Street, Mushin shown in plan Nos. Alof/1095/LA/156 and Alof/1095/LA/157.

(2) An order of perpetual injunction restraining the Defendant by himself, his agents or otherwise on all that piece or parcel of land, lying and being at Amu Street, Mushin in plan numbers Alof/1095/LA/156 and Alof/1095/LA/157.

(3) An order directing the defendant to render full account of all rent or mesne profit collected from tenants on the land in dispute to the plaintiff and pay over the said rent or mesne profit to the plaintiffs.

The respondents also filed a similar claim against the 2nd appellant who is the brother of the 1st appellant. The 2nd suit number was LD/1728/88. At the trial, both parties and the court agreed that the judgment In LD/1727/88 should bind the parties in suit No. LD/1728/88.

The land in dispute, according to the respondents was first inhabited by Odu-Abore and Aileru who jointly owned the land and that the said land devolved on the respondents. The two families became known as Ojuwoye community. According to them, their progenitors gave customary licence to one Osu-Apena, the grand father of the appellants for farming. It is their contention that Ojuwoye community determined the licence long ago during the life time of Osu-Apena.

In paragraph I of the appellants’ statement of defence, they admit that they are not members of Ojuwoye community. And in paragraph 3, admit that “the whole of the land at Ojuwoye Mushin, Lagos State is the communal land of Ojuwoye community which ownership is vested in the said community and the plaintiffs have no locus standi to institute this suit against the defendants.” They also admit in paragraph 14 of their said statement of defence that it was Ojuwoye community which allotted the land in dispute to Osu-Apena, their progenitor.

At the High Court, the learned trial judge entered judgment for the defendants, now appellants. The plaintiffs, (now respondents), not being satisfied with the judgment, appealed to the Court of Appeal which set aside the decision of the trial court and entered judgment for the plaintiffs/respondents. The appellants are dissatisfied with the judgment of the lower Court and have appealed to this Court. They filed notice of appeal dated 4th January, 2001 containing six grounds of appeal out of which the appellants have distilled four issues for the determination of this appeal. The four issues are:-

“1. Whether it can be adjudged as the Court of Appeal so decided, that Aileru and Odu Abore families, and both families alone, constitute the Ojuwoye community, to the exclusion of all other families in Ojuwoye, in view of the Supreme Court judgments in the consolidated suit Nos. 113 and 114/1950 Sunmola Aganran & 7 Ors V. J.F. Kanson (Exhibit D5) (b), suit No. 127 of 1944 – Yesufu Ajose, Sanusi Olowu, Gbadamosi Aileru, Amodu Iyalode, Salami Akinsanya (For themselves and as representatives of the Ojuwoye community V. Sunmola Aganran & Ors.

2. Whether from the totality of the evidence canvassed by the appellants herein at the trial of this suit, the Court of Appeal was right in assuming and concluding that the appellants derived their title from another “Ojuwoye community” which was not the same with the respondents’ Ojuwoye community who were the descendants of Aileru and Odu Abore families when both the appellants and respondents relied on the plan tendered as exhibit “A” in suit No. 127 of 1944, confirmed and reinforced in consolidated suit Nos. 113 and 114/50. Did this assumption result in a miscarriage of justice
3. Whether the appellants from the oral and documentary evidence adduced at the trial are members of the Ojuwoye community to justify their occupation and possession of the land in dispute.
4. Whether the respondents who were plaintiffs in this suit, discharged the burden of proof placed on them in establishing that the appellants (defendants) were “TRESPASSERS” and not “ALLOTTEES” to justify the claim in trespass, and injunction granted to them by the appellate court, in reversing the judgment of the High Court.”

It is however the view of the respondents that two issues are relevant for the determination of this appeal. The two issues as formulated by their counsel are as follows:-

“1. Whether the Court of Appeal was right when they held that the plaintiffs/respondents were entitled to succeed on their claim for damages for trespass and injunction.

2. Whether the Court of Appeal was right when they held that the defendants/appellants failed to lead any evidence as to the composition of his own Ojuwoye community and the source of title of the said Ojuwoye community in dispute.”

I intend to be guided by the issues formulated by the appellants.

The submission of Segun Akintan, Esq., learned counsel for the appellants on the first issue is that the Court of Appeal reversed the judgment of the High Court based on their conclusion that “Ojuwoye community” consists of only the Aileru and Odu Abore families, and that the Ojuwoye community pleaded by the respondents consists of only the Aileru and Odu-Abore families to the exclusion of all other families, to justify the respondents’ claim for trespass and injunction. Learned counsel questioned what oral and documentary evidence the respondents canvassed, and/or placed before the court in establishing this “exclusive right” to communal land, as against the evidence of the appellants in negating that exclusivity, bearing in mind that it is a cardinal principle of law that, he who asserts must prove, referring to S. 138 of the Evidence Act.

According to learned counsel, the case of the respondents as plaintiff was anchored in paragraphs 6, 10, 11, 12, 13, 14 and 16 of their amended statement of claim on page 67 of the record of appeal while that of the appellants as defendants was anchored in paragraphs 3, 4, 5, 6, 7, 14, 15 and 16 of their amended statement of defence. After listing those paragraphs and referring to previous judgments in respect of Ojuwoye community land, learned counsel submitted that, in as much as exhibit “A”, a certified true copy of original plan No. A151/1944 made by E. O. Aiyede LS dated 16/9/43, which was used in all the Supreme Court suits referred to by him, and also used in the present suit, clearly indicate and refer to the predecessors in title of the appellants herein i.e. Osu Apena as owners of farmland at Ojuwoye community, the respondents cannot dispossess them of their right over this land in as much as they are in use and occupation of their respective allotments.

It was his further submission that the respondents in this suit are estopped from laying claim to the land occupied by the appellants which from the composite plans, exhibits D9 and D10, shows that No. 32 Cash Sheet and No. 28 Amu Street claimed by the respondents fall within the land allotted to Osu Apena as farmland of Osu Apena in exhibit A in the previous Supreme Court suits, and retendered as exhibit P6 in the present suit.

Learned counsel further argued, submitted and urged the court to so hold that the issue as to who constitutes the Ojuwoye community, and whether one party has the right to dispossess another of its farmland, has long been adjudicated upon and laid to rest by this court in previous decisions and that it would amount to the grossest abuse of court process to relitigate these issues again, referring to the following cases:

Udo v Obot (1989) 1 NWLR (Pt. 95) 59, Achinakpa V. Nduka (2001) 7 SC (Pt. III) 125 at 134, Okukije V. Akwido (2001) FWLR (Pt. 39) 1487.

On the second issue, learned counsel submitted that there was never a deposition on the pleadings, and/or in the oral evidence of the appellants where the appellants (a) treated Ojuwoye community as ordinary or common citizens who reside at Ojuwoye community and/or (b) refer to another Ojuwoye community separate and distinct from the ones known and pleaded by the respondents. That it amounted to an error on the part of the Court of Appeal, and it resulted in a miscarriage of justice when they concluded thus at page 320 of the records in their judgment as follows:

“……..Although the defendant pleaded that there existed another Ojuwoye community other than the one pleaded by the claimant, the defendant did not lead any evidence as to the composition of his own Ojuwoye community, and how the said Ojuwoye community came to own the land in dispute in the first place ……. From the pleadings the parties were talking of two separate and distinct Ojuwoye communities.”

Learned counsel, submitted in conclusion that there was no pleading to the effect as concluded by the Court of Appeal, neither was there any evidence led on the existence of another Ojuwoye community.

On the third issue as to whether from the oral and documentary evidence adduced before the trial court, the appellants are members of Ojuwoye community, the appellants repeated their argument in issue one and I do not intend to also repeat the exercise.

In respect of the fourth issue which is dependent on the outcome of the other issues, learned counsel submitted that the respondents had no locus to institute this action for trespass because they were not in possession of the land in dispute since trespass to land is actionable at the instance of the person in possession. He cited the cases of Dokubo V. Omoni (2001) FWLR (Pt. 6) page 1804 and Eze Okonkwo V. Okere (2002) 5 SC (Pt. I) 58. He urged this court to hold that the preponderance of evidence as to possessory and legal rights to the land in dispute as established, tilts in favour of the appellants, and that in view of this rights, the appellants are not accounting parties to the respondents as they are bona fide land owners in Ojuwoye communal land.

In response to the first issue of the appellants, which is the respondents’ 2nd issue, the learned counsel for the respondents referred to paragraphs 6, 12 and 13 of their statement of claim and paragraphs 1, 3, 5 and 14 of the appellants’ statement of defence and submitted that the Court of Appeal was right when it held that the appellants did not lead any evidence as to the composition of their own Ojuwoye community and how the said community came to own the land in dispute in the first place. That the reliance placed on exhibits D5 and D8 to establish Ojuwoye community is an afterthought not supported by the case pleaded by the appellants in their statement of defence. Also submitted is that the appellants failed to establish that their grand-father Osu-Apena was a party in exhibits D5 and D8. Learned counsel further argued that issue of exhibits D5 and D8 constituting issue estoppels was not raised by the appellants by way of cross-appeal and therefore this court cannot entertain the section of issue I dealing with exhibits D5 and D8 raising issue estoppels. This argument appears to have covered issues two and three.

In respect of issue four which tallies with the respondents’ issue two, learned counsel for the respondents referred to several paragraphs of both the statement of claim and defence and submitted that the effect of the appellants’ admission of paragraphs 12 and 13 of the 2nd further amended statement of claim contained in paragraph two of the 2nd further amended statement of defence is that:

i) The appellants are the sons or descendants of one Osu-Apena (now deceased)

ii) Osu-Apena is not a member of Odu-Abore/Aileru families of Ojuwoye community.

Learned counsel submitted that the respondents have stated emphatically that the land in dispute was founded by Odu Abore and Aileru who jointly made up Ojuwoye community and that the lower court was right when they held that the respondents were entitled to succeed on their claims for damages for trespass and injunction, the licence granted the appellants having been determined in the life time of their grandfather.

Referring to the evidence of Ramonu Rufai Apena on page 94 of the record (lines 16 – 25) he submitted that there were inconsistencies as follows:-

1. Osu Apena his grandfather was the head of Ojomo Eyisha family.
2. The whole land at Ojuwoye originally belong to Ojomo Eyisha family.
3. I am not related to Odu Abore and Aileru families but I am a member of Ojuwoye family.
4. I am claiming as Ojuwoye community.

Learned counsel then asked if Ojomo Eyisha family owned the whole land at Ojuwoye as claimed by the appellants under cross-examination, the appellants failed to plead the traditional history of Ojomo Eyisha family and this is fatal to their claim of title to the land in dispute, relying on the case of Ojo V. Kamalu (2005) 12 SC (Pt 11) 1 at 40. It is his further submission that their claim was debunked by exhibits P2 and P3 which are subsisting judgments between Fafunmi, the head of Ojomo Eyisha family and Agaran the Baale of Ojuwoye. Learned counsel urged this court to resolve these issues in favour of the respondents.

I wish to start by stating that in a civil case, the claim of the plaintiff is won and lost first on the pleadings and secondly on the evidence led in support of averments in the statement of claim. Equally, the defence of the defendant is based on the facts averred in his statement of defence and evidence in support thereof. The purpose of pleading is to give the other side at the earliest opportunity, the case the other side is to meet. It is important to state further that there cannot be a better notice of the case a party intends to make than his pleadings. It is a notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however to an admission made by the other party. I need to emphasize also that evidence led at the trial which is at variance with the pleadings goes to no issue and must be rejected or discountenanced. See Anyah V. African Newspapers of Nig. Ltd (1992) 7 SCNJ 47, Obmiami Brick & Stone Nig. Ltd. V. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 250, American Cynamid Company V. Vitality Pharmaceuticals Ltd (1991) 2 NWLR (Pt. 171) 15.

Again, it is necessary to remind us of the elementary but fundamental rule of pleadings that parties are bound by their pleadings. No party will be allowed to set up a case other than that which is captured in his statement of claim or defence as the case may be. Therefore, parties must stick to their averments in their pleadings else, such a new case must be discountenanced. See Osho & Anor. V. Foreign Finance Corporation & Anor (1991) 4 NWLR (Pt 184) 157, Peenok Investment Ltd V. Hotel Presidential Ltd. (1992) NSCC Vol. 13 477, Akaninwo V. Nsirim (2008) 9 NWLR (Pt. 1093) 439.

In the instant case, it is clear, as was rightly stated by the court below, that the case was won and lost on the pleadings. Both the appellants’ and respondents’ counsel have lavishly reproduced paragraphs of both the statement of claim and statement of defence in their briefs to buttress the fact I have stated above. The court below did the same. I have no choice than to follow suit.

The respondents (as plaintiffs) in their 2nd further amended statement of claim pleaded as follows in paragraphs 3 to 6 and 12 to 16:

“3. The said land forms portion of a vast area of land which was first settled upon by one Odu-Abore and Aileru about three hundred years ago,

4. The said Odu-Abore and Aileru arrived there together and exercised maximum acts of ownership and possession over the vast area for very many years until their death.
5. On their death, they were succeeded by their descendants who together used the land in common.
6. The descendants of Odu-Abore and of Aileru together with their domestics are now referred to as the Ojuwoye community and consist of an amalgam of the descendants or family of Odu-Abore and of Aileru.
7. The plaintiffs aver that the defendant is a son and/or a descendant of one Osu-Apena now deceased.
8. The said Osu-Apena is not a member of Odu-Abore/Aileru families of Ojuwoye (Ojuwoye community).
9. The plaintiffs aver that over fifty years ago, one Osu-Apena was orally granted a customary licence to farm on a portion of Ojuwoye Community land including the land in dispute by the Ojuwoye Community.
10. The said customary licence was to be determined at anytime by the Ojuwoye community during the tenure or after the licencee has ceased to farm on the said land.
11. The said customary licence to farm on a portion of Ojuwoye community land was determined long ago before the death of Osu-Apena by Ojuwoye community when the said Osu-Apena ceased farming on the said land.” (Underlining mine)

Also, the appellants (as defendants) in paragraphs 1, 3, 4, 5, 14 and 15 of their 2nd further amended statement of defence pleaded thus:

“1. The defendant admits paragraphs 2, 7, 11, 12 and 13 of the 2nd further amended statement of claim.

3. The defendant in answer to paragraph 8 of the 2nd further amended statement of claim avers that the whole of the land at Ojuwoye Mushin Lagos State is the communal land of Ojuwoye community which ownership is vested in the said community and the plaintiffs have no locus standi to institute this suit against the defendant.
4. The defendant in answer to paragraph 9 of the 2nd further amended statement of claim avers that whilst it is conceded that the community can grant innumerable leases and customary tenancies in respect of their land, Rse (sic) do not apply to the land in dispute as well as to the adjacent land which have been allotted to their members of which the defendant herein is one of them.
5. The defendant in further answer to paragraph 9 of the 2nd further amended statement of claim avers that possession of communal land which has been allotted to a member of the community for his use and occupation is exclusive and the community cannot sue for trespass to the land as long as it is in actual possession of that member of the community to whom it is allotted.
6. The defendant avers that one Osu-Apena his progenitor was a prominent member of the Ojuwoye community among others to whom two parcels of land was allotted by the Ojuwoye community from time immemorial for use and occupation as was the custom in those days.
7. The defendants aver that his progenitor was in exclusive possession of the said two parcels of land until his death in 1922 when his descendants succeeded to his interest in the said land.” (Underlining mine).

I have already stated that it is the pleadings of the parties that lay out the case of each party. Thus, from the pleadings of the respondents, their root of title to the disputed land is traceable to their ancestors Odu-Abore and Aileru who jointly founded and settled on the land about three hundred years ago. They also pleaded and testified that these two progenitors jointly founded a community known as Ojuwoye community made up of the descendants of Odu-Abore and Aileru. The land in dispute, according to them is the communal land of Ojuwoye community as the licence to use same given to Osu Apena, the grandfather of the appellants had since been determined. They further stated that the appellants were the sons of Osu-Apena and that the said Osu Apena was not a member of the Ojuwoye community, reference to paragraphs 12 and 13 of the 2nd amended statement of claim.

On the other hand the appellants, as defendants admitted in paragraph I of their statement of defence that their grandfather (and by extension themselves) was/are not members of Odu Abore and Aileru families, the joint founders of Ojuwoye community. Although the appellants accept that the land in dispute was allotted to their grand father Osu-Apena, they however do not accept the respondents as the Ojuwoye community which gave them the land. As was pointed out by the court below, they appear to be referring to another Ojuwoye community.

In its judgment the court below held as follows:-

“On the evidence led before the trial judge and the pleadings, it was apparent that the defendant’s case was that he did not belong to Odu-Abore and Aileru family which the plaintiffs described as Ojuwoye community. Although the defendant pleaded that there existed another Ojuwoye community other than the one pleaded by the plaintiffs the defendant did not lead any evidence as to the composition of his own Ojuwoye community and how the said Ojuwoye community came to own the land in dispute in the first place.” (See p. 320 of the record.)

The above finding of the Court of Appeal is key to the determination of this matter. Learned counsel for the appellants argued that the above finding did not mirror the correct position of the appellants in the case. But looking at the pleadings above, the appellants clearly stated that Osu-Apena was not a member of Odu-Abore/Aileru families. They however pleaded that they derived their possession from “Ojuwoye community” which was not the same as the one of the respondents who are the descendants of Odu Abore and Aileru. That is why they stated emphatically that the respondents had no locus to bring the suit against them. On page 93 of the record, the 1st appellant in his evidence in chief testified as follows:

“It is true that my progenitor Osu-Apena was not related to Odu Abore or Aileru family. – He was a prominent member of Ojuwoye community. The Ojuwoye land belong to Ojuwoye community. It is Ojuwoye community that can institute this action.”

That was not all. Under cross examination, the same appellant stated on page 93 of the record as follows:-

“The two families Odu Abore and Aileru are not the people referred to as Ojuwoye community.”

Except I do not understand simple English language which I think I do, the appellants by their pleadings and the evidence I have reproduced above, state emphatically that contrary to the assertion by the respondents that Ojuwoye community “consists of an amalgam of the descendants or families of Odu Abore and Aileru”, “the two families Odu Abore and Aileru are not the people referred to as Ojuwoye community.” Simply put, the Ojuwoye community which gave them the land are different from the respondents. For me, I think the court below was right to hold that the appellants referred to another Ojuwoye community other than that made up of the families of Odu Abore and Aileru. I agree with the court below that the learned trial judge was wrong and proceeded from nothingness to hold that the appellants and respondents belong to the same Ojuwoye community.

It is quite clear that the appellants, though they made reference to Ojuwoye community other than that of the respondents, they failed to plead and lead evidence to show where they were coming from. Having pleaded that this land belongs to Ojuwoye community, it is either the appellants accepted the respondents as the said community or ought to have led evidence to prove the components or constituents of the one they were referring to. The appellants, as it turned out, have failed to do any of the two. They failed woefully to show the source of the title of the Ojuwoye community which granted the land in dispute to Osu Apena, their grandfather. This much, the lower court clearly stated, which I agree entirely. The law is elementary that the burden of proof is on the party who alleges the existence of any fact. By Section 131(1) of the Evidence Act 2011, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The burden of proof in a civil suit or proceeding lies on that person who would fail if no evidence at all were given on either side (Section 133 of the Evidence Act 2011). See Calabar Central Co-operative Thrift & Credit Society Ltd & Ors. V. Bassey Ebong Ekpo (2008) 5 NWLR (Pt. 1083) 362, Nnadozie V. Mbagwu (2008) 3 NWLR (Pt. 1074) 363, Peter Obiaku V. Ignatius Ekesiobi (2003) FWLR (Pt. 166) 661, Tsokwa V. UBN (1996) 12 SCNJ 445. The failure to lead evidence to prove the origin of the appellants’ Ojuwoye community is the bane of their case.

On the various judgments referred to by the appellants, the lower court has this to say on page 232 of the record:

”The defendant pleaded that he was relying on some judgments for his assertion that he belonged to Ojuwoye community. None of the judgments tendered raised a plea of res judicata or issue estoppels against the plaintiff on the defendant’s membership of plaintiff’s Ojuwoye community.”

I agree. There is nothing in those judgments which suggest that the appellants are members of Ojuwoye community. If those judgments consolidated their position, why did they emphatically state in their pleading that they are not members of Ojuwoye community and that the land was given to their ancestor by Ojuwoye community, but not that of the respondents The appellants must admit that they lost this case on the pleadings and there is nothing that can be done at this stage.

The sum total of all I have been saying above is that the appellants have failed to show why this court should upturn the judgment of the Court of Appeal in this matter. Accordingly, this appeal is devoid of merit and is hereby dismissed. I affirm the judgment of the Court of Appeal. I award costs of N100,000.00 in favour of the respondents.

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SC.173/2004