Saka Owoade & Anor V. John Abodunrin Omitola & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal against concurrent judgments of the High Court Ibadan, and the Court of Appeal, Ibadan Division. The High Court gave judgment for the Plaintiff. The Court of Appeal confirmed the High Court decision.

In the High Court, the Plaintiff Mr. S.L. Omitola commenced an action by a writ of summons against the 1st defendant, Saka Owoade for a declaration of title to a piece of land on Adeyinka Adebayo Road, Ibadan, 500Pounds (N1,000.00) damages for trespass and an injunction.

The 2nd defendant Arnusa Adeleke was later joined by order of court. In a nutshell, the Plaintiff’s case before the High Court was that be purchased the land in dispute from Eleruko line, a branch of Alasoro Family of Foko, Ibadan, that the land was part of Alasoro Family land which was granted to them by Alaran of Alaran Family.

The purchase was evidenced by a deed of conveyance registered as No. 13 at p.13 in Vol. 334 of the Register and dated 25th day of August, 1959. It also averred that early in 1959 the descendants of Alasoro and Eleruko partitioned their land and that it was part of Eleruko’s share that was sold to him. Since the purchase he has been in effective and continuous possession of the land in dispute. As part of their acts of ownership they permitted one Osa Salako to farm on part of the land now in dispute on conditions that he planted only food crops and paid “Isakole” to them. They averred that Salako died without an issue; and so the land reverted to his grantees.

The Defendants’ case was that the land in dispute measuring approximately 5.314 acres originally belonged to one Adeleke Aregbeomo who was granted the land by one Salako in March, 1926, as per a memorandum, Exh. 02. Salako himself had received a track of land which included the land in dispute as an absolute grant by custom from Alasoro and exercised all acts of ownership thereon until he sold a portion of it to Adeleke who thereafter exercised acts of ownership over the land until he died and the land devolved on his children. Adeleke’s children sold the land to the 1st Defendant as per a deed of conveyance dated the 18th day of October, 1960 and registered as No. 45 at P.45 in Vol. 409 of the Register of Deeds, Ibadan. Contrary to the plaintiffs’ case they averred that Salako had a son, a daughter, and a grandson and gave their names. Finally they stated that the children of Salako purported to sell and convey the land because they did not know that their father had sold and conveyed it to Adeleke for valuable consideration.

After trial the learned judge, Ogundere, J. (as he then was) entered judgment for the plaintiff and granted to him a declaration of title and a perpetual injunction. He also awarded N50.00 as damages for trespass against the Defendants. On appeal to the Court of Appeal, Ibadan, the appeal was dismissed. The Defendants (hereinafter called the Appellants) appealed. Parties duly filed and exchanged their briefs. The issues for determination in the appeal were admirably set out by the learned Senior Advocate for the Appellants thus:

“(i) Whether the four passages referred to in Ground One of the Grounds of Appeal do not amount to casting the onus of proof on the Defendants instead of on the Plaintiff and if so whether the Court of Appeal was right in upholding a decision of the High Court which is fixed with such fatal error of law.

(ii) Whether in the circumstances of this case if the names of the ancestors of the grand-children and great-grand-children of Alasoro and Eleruko which were not pleaded, but were improperly introduced in evidence without amendment of the statement of claim, were expunged from the I proceedings the case of the Respondent would not have been adversely affected as stated by the Court of Appeal; the names being those of the two of the three vendors who claimed to belong to the land owning family.

(iii) Whether family land which has been partitioned still retains the incidents of family land so that recipients of various parcels in the partition can still deal with other parcels not belonging to them, as their own – AND specifically, whether the issues raised under grounds four and six herein arc fundamental as submitted or amount to mere technicality as held by the Court of Appeal.

(iv) Whether in a case in which issue was joined on the family identity of vendors who granted family land, the court was not obliged to make specific findings on the relationship of the vendors where there is evidence which shows them to belong to a family different from that claimed by them – or at best, evidence which raises some doubt or is capable of raising doubts as to the particular family to which the vendors belong. This issue is canvassed in Ground five of the grounds of appeal herein.

(v) Whether an Appellant is at liberty to call in aid the provision of section 129 of the Evidence Act (which enables a Court to make certain presumptions in respect of a document which is more than 20 years old at the date of the contract) in support of a ground of appeal where a Statement in such document confirms the fact intended to be proved- Or whether in such a case (or in all cases) Sections 129 of the Evidence Act must be raised in a separate and distinct ground of appeal”.

I should mention, too, that before argument started in this appeal, learned counsel for the Appellants applied by a motion on notice to substitute Latifu Ajibola Owoade, Bola Fadele, Owolabi M. Owoade. And Majeed Owoade for Saka Owoade who had died. The application was granted. The Plaintiffs as substituted shall hereinafter be referred to as the Respondents.

The first issue for determination which was raised by the first two grounds of appeal attacks the learned trial judge’s approach to the cases of the parties and the confirmation of the judgment by the Court of Appeal. The gist of the complaint is that the learned judge cast the onus of proof on the Appellants, considered their case first, and dismissed it before he proceeded to consider and accept the case of the Respondents (Plaintiffs). Learned Senior Advocate for the Appellants referred to several passages in the judgment to substantiate his point. The learned trial judge, he complained, did not thereafter give adequate consideration to the case for the Appellants. He submitted that since the two parties traced their title to the same root, the onus was on the Respondent to establish a better title.

In his reply on this issue, the learned counsel for the Respondent in one breath submitted that it is not true that the learned judge first considered the case for the defence and decided it before he proceeded to consider the plaintiffs. In quite another, he conceded it that it was so, but submitted that it did not make any difference, in so far as the burden of proof had not been shifted. In his submission, the burden was on the defence to prove their averments.

In my view, the complaints of the Appellants on this issue are unanswerable. After the learned trial judge had summed up the cases of both sides before the court as revealed by the pleadings and evidence, he adverted to aspects of the law and proceeded to evaluate the evidence called by the defence. He said:

“I am aware that the Plaintiff can only succeed by the strength of his claim and not by the weakness of the case of the Defendant. However, it is important to establish in whom title to the land in dispute resided between 1926 and 1959. Paragraph 6 of the amended statement of defence avers:……”

After quoting it he said.

“One would then expect the Defendant to establish by preponderance of evidence the grant from Alasoro to Salako.”

Then he commented on other aspects of the case for the defence. Then he ended:

“If the grant by Alasoro to Salako as averred by the defence is in doubt as I find it is, then the purported sale by Salako to Adeleke as evidenced by Exh. D2. must also be in doubt.

I should now evaluate the traditional history or evidence adduced by the Plaintiff…..”

Thus it cannot be doubted from the above that the learned judge considered the case for the defence before considering that for the Plaintiff (Respondent). When it is noted that the pith and marrow of the case for the defence is that they and their predecessors-in-title were in possession of the land in dispute, as owners, before and after the sale transaction between Salako and Adeleke, as evidenced by Exh. 02 dated 18th day of March, 1926 – long before the Respondent purported to purchase the land in dispute on the 29th day of August, 1959, the amount of damage the approach which is being complained about did to the Appellants’ case he comes only too obvious for comments. Worse, it appears also that when the learned judge started to consider the case of the Respondent, he scarcely ever balanced his considerations of different issues of fact in the case as revealed in the evidence by and on behalf of the Respondent with those for and on behalf of the Appellants.

Thus the approach which the learned judge made to the evidence before him suffers from three fundamental errors. In the first place, it is now firmly established in our law that in a claim for declaration of title, such as this, the onus is on the Plaintiff to prove his case to the hilt. He must in that regard rely on the strength of his own case and not on the weakness of the defence. The law is still as it was stated in Kodilinye Vs Mbanefo Odu (1935) 2 W.A.C.A. 336, where Webber C.J. stated at P. 337:

“The onus lies on the Plaintiff to satisfy the Court that he is entitled on the evidence brought by him to a declaration of title. The Plaintiff in this case must rely on the strength of his own case and not on the weakness of the Defendant’s case. If the onus is not discharged the weakness of the Defendant’s case will not help him and the proper judgment is for the Defendant.”

See also: M. O. Odesanya v. D.A. Ewedemi (1962) 1 All N.L.R. 320, also Atuunyu V. Onyejekwe (1975) 3 S.C. 161, Bashua v. Maja (1976) 11 S.C. 143.The qualification to the above principle in Josiah Akinola & Anor. v. Fatoyinbo Oluwo & Ors. (1962) W.N.L.R. 133, F.S.C., that a Plaintiff can take advantage of and rely on evidence by the defence which supports the Plaintiffs case is not relevant in this case, as there is no such evidence here. Indeed the situation which has arisen on this issue in this case is similar to what took place in the case of Alhaji J. Aromire & 2 Ors. v. J.J. Awoyemi (1972) 1 All N.L.R. (Pt. 1) 101, where Coker, J.S.C. commented at P.113:

“The learned trial judge observed in a number of passages that the Appellants had not proved their title or that the land in dispute fell within Exh. E. On the strength of the authorities the Plaintiffs title must first be considered and decided upon before a consideration of the title of the Defendants arises.”

In that state of the law, to have first picked on the main plank in the case for the defence and demolished it before even considering the Respondent’s (Plaintiffs) case is a grave error.

This brings me to the second arm of the complaint under this issue, that is that the learned trial judge did not give proper and adequate consideration to the case for the defence while considering the case for the Plaintiff. The gist of this complaint is that the learned judge reached his conclusions in favour of the Respondent without reference to the evidence called by the Appellants on different issues of fact.

This raises the vexed question as to the proper approach to evidence called by both sides in a civil case. Unlike in criminal cases where the question is whether or not there is evidence in support of a finding, in civil cases, the question is on which side does the weight of evidence lie. This is because proof in civil cases is on a balance of probabilities. The corollary of the principle that proof in civil cases is on a balance of probabilities is that in the assessment of evidence on any particular issue, evidence called by either side on the issue ought to be put on either side of an imaginary balance and weighed together. Whichever outweighs the other in terms of probative value should be accepted. Dealing with this point in A.R. Mogaji & Ors. v. Madam Rabiatu Odofin & Ors. (1978) 4 S.C. 91. at P.93. Fatayi Williams, J.S.C. (as he then was) said:

“In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if the law supports it; bearing in mind the cause of action, he will then find for the Plaintiff. If not, the Plaintiffs case will be dismissed”

As I have stated, in the instant case, what the learned judge did after demolishing the Appellant’s case was to consider the Respondent’s case as it were in isolation. He made no attempt to balance the evidence called in support of the Respondent’s case with that for the Appellants. On the important Issue of possession, for an example, it was Appellant’s case that his predecessors- in-title were in possession of the land in dispute before and after the memorandum of 1926, Exh. D2. Indeed this possession by Salako, through whom the Appellant claims, was not disputed by the Respondent. Rather it was the Respondent’s case that Salako was then in possession of the land in dispute not as owner but as a customary tenant of the Respondent’s predecessor-in-title. The learned judge by failing to advert to these conflicting claims and to balance the evidence given on the issue one against the other did not make any finding on the point. In any event, even by the case which the Respondent put forward on the issue, one must ask: what happened to the possessory right of Salako as a customary tenant It is, of course, settled law that unless his tenancy is forfeited by order of court on a suit for forfeiture, a customary tenant enjoys perpetuity of tenure: See Obidinaka Ejeanalonye & Ors. v. Ikpendu Omabuike & Ors. (1974) 1 N.M.L.R. 299, P.303; Abudu Lasisi & Anor. v. Oladipo Tubi & Anor. (1974) 1 All N.L.R. (Part 2) 438, at P.442; Aghenghen v. Waghoreghor (1974) 1 All N.L.R. (Part 1) 81. It can not therefore be said that when the Respondent took conveyance of the land in dispute in 1959, the quantum of the estate he bought included the possessory right of Salako as a customary tenant, or his succcssor-in-interest. This would be against the run of decided cases: See: Surakatu Lawani v. Jeminatu Esu Tadeyo & Anor. (1944) 10 W.A.CA. 37. Strikingly, the Respondent’s original statement of claim dated 10th November, 1971, contained no single act of possession. It was just barely averred in paragraph 7 thereof that since the purchase, i.e. in 1959, the Respondent was in peaceful and undisturbed possession. There was no allegation of any act of possession by the Respondent before 1926 or between 1926 and 1959. Caught in this ineluctable tangle, the Respondent decided to explain away the position of Salako. In an amended statement of claim dated 28th December, 1971, he pleaded in paragraphs 13, 14 and 15 which were new as follows:

“13. That during their lives they exercised rights of ownership openly in various ways e.g. they permitted one Osa Salako to farm on part of their land – the land in dispute with the condition to plant only food crops such as yam, corn and vegetables to maintain himself, giving his landlords “Isakole” and taking part in the family’s festivities every year but never to alienate it or plant Cocoa Kola nut or any other economic trees.

14. Osa Salako, died without issue.
15. That after Osa Salako died without issue the descendants of the grantees continued to use the Land in common and continued to exercise the rights of ownership openly.”

In my view, the above expedient. in appropriate metaphor, tried to scotch the snake hut did not kill: for the ghost of Salako still haunted him. For, he did not plead any grant before the one of 1959. If Salako had no issue, who were the “descendants of the grantees” who could continue to use the land after Salako’s death If the only customary tenant of theirs as averred in paragraph 13 of their amended statement of claim had, on their own showing, no issue and no other descendants have been shown, there could be no descendants of his that continued to use the land. Also, I agree with learned Senior Advocate for the Appellants that because of the approach which the learned trial judge made to the Appellant’s case, he failed to make any finding as to the evidence of tradition called by the Appellant.

Thirdly, for the same reason he cast the onus of proof upon the defence. For, before ever considering Respondent’s case he held:

“Firstly the Defendants have not proved to my satisfaction that they were in exclusive possession of the land in dispute, as both the Plaintiff and the defendant claimed to be in possession and have each exercised possessory rights”.

Now it is indubitable that on a proper direction it is the Respondent who claims a declaration of title who should prove exclusive possession; whereas, for the defendant, if he can show that he is in lawful possession of the land, or in adverse possession of it for a long time (Awo v. Cookey Gam (1913) 2 N.L.R. 29), it is enough to defeat the Plaintiffs’ claim to title.

Also if, as the last clause of the above quotation seems to suggest, both parties have exercised possessory rights over the land in dispute the Plaintiff’s claim to title is not proved. It has now been established beyond peradventure that, as in a case of declaration of title the burden of proof is on the Plaintiff, he does not discharge that burden by showing that the scales are evenly weighted between the parties: where he proves that he and the Defendant exercise possessory rights over the land he has failed to discharge the onus: See Francis A. Odiete & Ors. v. Omamujewhe Okotie & Ors. (1975) 1 N.M.L.R. 175.

The next issue relates to the opinion of the Court of Appeal that even if the evidence regarding the other grand and great grand children not pleaded in the genealogy were expunged the Respondent’s case could not have been adversely affected. The main thrust of Chief Chukura’s argument is that if the unpleaded names are expunged then the remaining names are not sufficient and qualified to have given a valid title to the Respondent as per his deed of title, Exh. P1. The learned counsel for the Respondent submitted that the Court of Appeal was right and that, in any event, the three names said not to have been pleaded were pleaded in paragraph 11 of the statement of defence. Furthermore, this counsel contended that in so far as Exh. P1 was pleaded, the Court was entitled to look at it to know who were the vendors.

With respects, I believe the last submission completely missed the point. The issue is whether the genealogy table relied upon is in accord with the pleading of the Respondent: it is no quest as to who the actual vendors of the Respondent were. As for the pleading in paragraph 11 of the statement of defence, it is clear that those names were pleaded to show that, contrary to the assertion of the Respondent, that Salako died without an issue, he had children and a grand child. Those names were, therefore not pleaded to show the connection of all the vendors in Exh. P1 with the family tree. Also Exh. P1 is evidence of the grant and is no answer to any defect in the pleading.

Now there are four vendors in Exh. P1, namely Busari Omomiregun, Raimi Owolabi, Morenike Abiola and Rufai Abiodun. But of these only Rusan Omoniregun can he traced to the family tree pleaded. For, in pararaphs 9, 11 and 11a of the Amended Statement of Claim, it was pleaded as follows:

“11. The ancestors of the grantors of the piece of land in dispute to the Plaintiff – Alasoro and Eleruko had a large piece of land which they used in common.

11a. Eleruko begat Adesilo, Odesilo begat Omoniregun and Omoniregun begat Busari Omoniregun Alasoro begat Ajayi and Iyapo Ajayi begat Odu, Odu begat Akinola, Akinola begat Yesufu Adeleke Alasoro.”

Evidence of P.W. 3 shows that Rufai Abiodun (one of the grantors) was a complete stranger. And Owolabi said to be the father of Raimi Owolabi and Morenike Abiola was not mentioned in the pleaded genealogy either. In Total Nigeria Ltd. v. Nwako & Anor. (1977) 5 S.C. 1, Obaseki, J.S.C. held at P.10-11 that the Plaintiff was obliged to plead such a genealogy. In Akinloye v. Eyiyola (1968) N.M.L.R. 92 this court dismissed the appeal of the Appellants who appealed against the ruling of the learned trial judge that evidence of the names and histories of the several ancestors of the Appellants mentioned by them or on their behalf in evidence was not admissible because they were not pleaded. We have long gone into the regime of pleadings in the trial of our civil cases. Parties are bound by their pleadings; so, they are not allowed, without an amendment of their pleadings, to go outside them to establish their cases: See Aderemi v. Adedire (1966) N.M.L. R. 398, and p.401. The result of all I have been saying on this point is that all evidence relating to Owolabi and his two sons Raimi Owolabi and Morcnike Abiola ought to be, and is hereby expunged as not being pleaded. If that is done, mid the fact that Rufai Abiodun is a stranger taken into account, it follows that the only remaining vendor in Exh. P1 is Busari Omoniregun. To make matters worse. Busari did not convey the land as the head of the family; and there is no evidence that at the time he made the grant he was the head of the family. If there were that evidence, a grant of the family land made by him alone would have been voidable only: See Ukaegbu Ekpendu & 2 Ors v. Onyeweaku Erika (1959) 4 F.S.C. 79. As there was no such evidence, the grant was void ab initio. The Court of Appeal was therefore wrong when it held:

“In this case, it seems that even if the evidence regarding the other grand and great grand children were expunged the Respondent’s case would not have been adversely affected.”

While still on this question of pleaded genealogy, one can not help agreeing with the learned counsel for the Appellants that Eleruko and Alasoro lines run parallel to each other. They are not shown to have met at any point. As if to complete the havoc to the Respondent’s case in this regard, P.W.5, Yesufu Adeleke said:

“Alasora family originally owned the land and they later granted it to Odesilo Eleruko. Alasoro was my father. After the wars, Alaran called my father Alasoro to come and farm on the land.

. . . . . . . . . . . . . . . . . . . . . . . . ……………. Eleruko was a war vassal boy to my father.”

This is all contrary to the Respondents case as pleaded in paragraphs 11 and 11a of the amended statement of claim set out above. Clearly it put paid to the case of joint ownership before partition between Alasoro and Eleruko lines. When, as in this case, a Plaintiffs case depends on tradition it is of utmost importance that the traditional evidence tendered must not only make a consistent sense but also that it affirmatively links the Plaintiff with the traditional history he relies upon. One cannot say that either has happened in this ease. On a proper view of the evidence of tradition the learned judge should have held that the evidence is inconsistent and therefore inconclusive.

The next issue relates to the approach made by the Court below to the evidence of partition. Their Lordships held that there was no evidence that the land had been partitioned before Exh. P1 was executed on the 25th of August, 1959. This was clearly contrary to both the pleading and the evidence called at the trial. For it was pleaded in paragraph 16 of the amended statement of claim thus:

“16. That early in 1959 the descendants of Alasoro and Eleruko decided to divide their large track of land into two parts-one part went to Alasoro line and the other part to Eleruko line – the line that later sold its own portion to the Plaintiff.”

In evidence, 1 P.W., Busari Omoniregun showed that the partition took place before the execution of the conveyance. So did the evidence of 3 P.W., Oyinlola Ajoke. So, the learned counsel for the Appellant was right when he submitted that the deed of conveyance, Ex. P1, was, on Respondents showing executed after the partition. Partition, in contradistinction to allotment, is a division of co-ownership. See: Balogun v. Balogun (1943) 9 W.A.C.A. 78, at p.82.

As the co-ownership of the land as between the Alasoro and the Eleruko sections had, on Respondent’s own showing, terminated before the conveyance, it becomes incomprehensible how the two sections could again join in the executions of the deed of conveyance, Exh. P1. The learned trial judge as well as the learned Justices of Appeal failed to appreciate this point. Their failure to appreciate the case of the Respondent in this regard has led to a miscarriage of justice.

The issue relating to a presumption under section 129 of the Evidence Act appears to have been based on a misconception. Learned counsel for the Appellant has submitted that on the face of the content of Exh. D2 where Ogundiran made a mark as “Salako’s son”, the Court of Appeal should have invoked the presumption under section 129 of the Evidence Act and presumed that fact in favour of the Appellant. Much as I do not agree with Thomas, J.C.A., that that point could not be properly raised under ground 5(b) in the Court of Appeal, I agree with him that the presumption is not applicable in the instant case. Now, section 129 of the Evidence Act provides as follows:

“Recitals, statements and descriptions of facts, matters and parties contained in deeds, instruments, Acts of Parliament, or statutory declarations, twenty years old at the date of the contract, shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descriptions.”

Exh. D2 stands alone. It does not refer to any contract 20 years old. As the section clearly states, the presumption arises with respect to recitals, statements, etc which were twenty years old at the date of the contract, not those that were twenty years old at the date of the proceedings; See John Kobina Johnson & Ors. v. Irene Ayinke Lawanson (1971) 1 All N.L.R. 56 at P.66; also Sanya v. Johnson (1974) 1 All N.L.R. 1981, at p.207. Indeed in Johnson v. Lawanson (Supra)