Sule Sanni V Durojaiye Ademiluyi (2003)
LAWGLOBAL HUB Lead Judgment Report
E. OGUNDARE, J.S.C.
By paragraph 23 of the amended statement of claim, the plaintiff (who is the respondent in this appeal) had claimed from the defendant, now appellant:
“23. Whereof the plaintiff’s claim against the defendant is for a declaration that the plaintiff is entitled to occupation and possession of the farmland situate lying and being at Idi-Ogun village, Ife in accordance with native law and custom of Ife having been in lawful occupation and possession of the said land long before the Land Use Act.
The plaintiff also claims perpetual injunction restraining the defendant, his servants, agents or privies from further entry or trespass on the said farmland.”
The defendant resisted the claim and filed a statement of defence which he subsequently amended. The matter went to trial at which the parties called witnesses. After learned counsel for the parties had addressed the court, the learned trial Judge Adeniran, J. in a reserved judgment found plaintiff’s claim not proved and dismissed it with costs. The plaintiff being dissatisfied with the judgment of the trial High Court appealed to the Court of Appeal. The appeal was successful. The Court of Appeal set side the judgment of the trial High Court and entered judgment in favour of the plaintiff and his claims. That court per Dalhatu Adamu, JCA adjudged as hereunder:
“Finally with the resolution of all the issues in this appeal in favour of the appellant, his appeal has succeeded and must be allowed. The appeal is consequently hereby allowed. The decision of the trial court is hereby set aside. In its place judgment is hereby entered in favour of the appellant as per paragraph 23 of his amended statement of claim. He is consequently hereby declared to be entitled to occupation and possession of the farmland situate and being at Idi-Ogun village, Ife in accordance with native law and custom of Ife and having been in lawful occupation and possession of the said farmland long before the Land Use Act. I assess the cost of this appeal at N1,000.00 which I hereby award in favour of the appellant.”
It is against this judgment that the defendant has now appealled to this court upon 4 grounds of appeal contained in his amended notice of appeal filed with the leave of this court. In his amended brief of argument in this court the defendant through his counsel Olatunde Shonibare Esq. formulated 5 issues which run thus:
“(i) Whether the High Court has jurisdiction to even entertain an action subject of land situate in a village (by plaintiff’s admission 22 miles from Ife) Idi-Ogun, and given the position of the law, both statutory and case laws on the court with jurisdiction to entertain such matter. Meanwhile there is a customary court in the area.
(ii) Whether the court has jurisdiction to entertain an action wherein a plaintiff is claiming entitlement to statutory right of occupancy in respect of land situate in a village.
(iii) Whether the plaintiff was able to prove by credible evidence the averment that all land by Ife custom belong to the crown (King) and that ownership by settlement is alien to Ife and in essence that the land was a grant made to his family by the Ooni of Ife.
(iv) Whether the plaintiff was ever in possession of the land in dispute as against the defendant.
(v) Whether even if the Court of Appeal were to admit the exhibits on criminal charges and evidence adduced thereon there are still no materials before the learned trial Judge, who saw witnesses and heard evidence to come to the same decision dismissing the plaintiff’s case in its entirety.”
The plaintiff for his part in his own respondent’s brief formulated the following 4 issues:
“1. Whether it was right for the trial court to assume jurisdiction and try the case based on the location of the land in dispute and the claim as formulated before the trial court.
- Whether the Court of Appeal should have allowed the judgment of the trial court to stand notwithstanding the reliance placed by the trial Judge on inadmissible evidence, exhibits 2 and 3 in arriving at his decision and whether it would not have made a difference to the judgment if exhibits 2 and 3 were expunged.
- Whether the court of Appeal should not have interfered with the judgment of the trial court which was based on speculation that the appellant and his predecessor in title been (sic) in unlawful possession the respondent’s father would not have condoned the situation when issues were not joined by the parties on this in their pleadings.
- Whether the respondent did not adduce enough evidence to establish his claim.”
Having regard however, to the judgment appealed against and the grounds of appeal contained in the defendant’s notice of appeal to this court, I think the issues as formulated in the appellant’s brief by the defendant are to be preferred.
Before I proceed to the consideration of the issues raised in this appeal, I think this is an opportune moment to state the facts how-be-it briefly. The plaintiff is the son of one Okero Ademiluyi who died some years ago leaving behind a piece or parcel of land now in dispute. Plaintiff is representing the family of the said Okero Ademiluyi in these proceedings. The land in dispute is situate at Idi-Ogun village in Ife district.
Okero Ademiluyi was the son of Oba Ajagun Ademiluyi, the Ooni of Ife who reigned from 1910 -1930. According to the plaintiff by the customary law of Ife, all land in the Kingdom belongs to the Ooni of lfe who has dominion over it. Okero Ademiluyi was a hunter and a farmer. His father the Ooni Ademiluyi granted the land in dispute to him about 70 years before the institution of this action in 1986. Following the grant of the land to him, Okero Ademiluyi took possession and did hunting and farming on the land until his death on or about 1981. He planted cocoa, kola, palm trees etc. on the land and had several servants working for him. The plaintiff was placed on the land by Okero his father as an overseer. Okero also granted part of the land to other people to do farming. One Jimoh Ajani was one of the servants who worked on the land.
The case for the defendant was quite different. It is his own case that every family in Ile-Ife has its own farmland and that the farmland in dispute belongs to the family of Sanni Fogbonja. Sanni Fogbonja was the father of the defendant Warobi the great grand father of the defendant and a hunter and farmer in his day was the first to settle on the said farmland about 100 years before the filing of this suit. Warobi died and was succeeded on the land by Fogbonja his son who continued to practice hunting and farming on the land as Warobi did in his day. After the death of Fogbonja his son Sanni succeeded him on the land. This Sanni was the father of the defendant and he farmed and did hunting on the land. Both the defendant and his father farmed on the land and did hunting. Sanni died in December 1982 and it was after his death that the plaintiff started harassing the defendant and his late father’s tenants on the land. According to the defendant the plaintiff’s family land is at Elegberun village in Ife.
Issues (I) and (2): It is the contention of the defendant that the High Court has no jurisdiction to entertain any suit in respect of land the subject matter of a customary right of occupancy. He relied on Oyeniran v. Egbetola (1997) 5 NWLR at 504 page 122; Sadikwu v. Dalori (1996) 5 NWLR (Pt. 447) 151 and Salati v. Shehu (1986) 1 NWLR (Pt 15) at 198. Learned counsel for the defendant however, referred the court also to a recent decision Adisa v. Oyinwola (2000) FWLR (Pt. 8) pg. 1349 at 1354; (2000) 10 NWLR (Pt. 674) 116 where the previous decision of this court in Oyeniran v. Egbetola (supra) was overruled. Learned counsel for the defendant however, submitted that in spite of this decision the claim of the plaintiff to a statutory right of occupancy to land in a rural area is incompetent. The plaintiff’s counsel has argued to the contrary. It is learned counsel’s submission that the claim was competent.
I think I must resolve these 2 issues against the defendant in this case. The case of Adisa v. Oyinwola (supra) is a complete answer to the question of jurisdiction of the High Court in dealing with land whether in urban or rural and the power of the Governor to grant statutory right of occupancy is not restricted to which area the land is situate. Section 5(1)(a) provides.
“5(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area –
(a) to grant statutory rights of occupancy to any person for all purposes;” (Italics are mine)
It is therefore, a misconception that the claim here is incompetent.
Issue (3)
The plaintiff in paragraphs 8, 11 and 11(a) of his statement of claim averred as follows:
“8. The land in dispute forms part of a larger area of land granted to the plaintiff by Ooni Ajagun, Oba Ademiluyi, who reigned from 1910-1930.
- By the native law and custom of Ife, the reigning Oba in Ife is the owner of all land in his domain.
11(a). All farmland in Ife are traceable to grant by an Ooni of Ife in accordance with native law and custom of Ife and ownership of land by settlement is unknown to Ife custom.”
The defendant in his own amended statement of defence in paragraph 25 averred as follows:
“25. Every family in Ile-Ife has its own farmland in Oranmiyan Local Government area and the farmland in dispute belongs to the family of Sanni Fogbonja.”
From these averments the issue that arose between the parties is as to whether or not the Ooni Ademiluyi had right to grant the land in dispute to the plaintiff’s father Okero Ademiluyi. Each party led evidence in support of the case put forward in the averment above.
The learned trial Judge however, in his judgment went on the basis that the plaintiff claimed the land in dispute as stool land which was granted to his father by Oba Ademiluyi. He, with respect to him, misconceived the plaintiff’s case. After quoting some paragraphs of the amended statement of claim, the learned Judge said:
“The plaintiff is thereby basing his root of title on a grant from Oba Ajagun Ademiluyi as his stool land.”
That clearly was not plaintiff’s case put before the learned trial Judge. Again in his judgment the learned trial Judge said:
“In his amended statement of claim the plaintiff says all land in lle-Ife according to its native law and custom belongs to the reigning Ooni as stool land. The Ooni grants whoever he pleases. In that capacity the Ooni Ajagun granted Okero Ademiluyi one of his children the land in dispute located at Idi-Ogun. In his testimony in court the plaintiff merely said it was Ajagun Ademiluyi Ooni and Okero’s father who granted the land in dispute to his father Okero. He did not say how and in what capacity Ajagun granted the land in dispute to Okero or how Ajagun Ademiluyi came to own the land. This omission may seem minor but in my considered view it is very important and it may adversely affect plaintiff’s case if no other relevant evidence is available. Plaintiff’s evidence of grant is inconclusive in – the land granted to plaintiff’s father might be stool land no in that capacity Ooni Ajagun had absolute discretion of what to do with same. It might well be chieftaincy family land; in which case Ooni Ajagun would have to seek consent of head of the family and principal members of chieftaincy family to grant same. It is not sufficient for the plaintiff to have merely said as he did that according to native law and custom as at that time Ajagun Ademiluyi the then Ooni and father to my father Okero Ademiluyi granted farmland in dispute to my father.”
It is clear from the above passage that there is a complete misconception of the case of the plaintiff.
A proper understanding of plaintiff’s case is that the land in dispute forms part of the communal land of Ife over which the Ooni has power to make a grant. The defendant clearly understood the plaintiff’s case put as stated above hence his pleading as in paragraph 25 of his amended statement of defence. There is a world of difference between stool land and communal land. Stool land is land appertaining to chieftaincy and is vested in the Chief absolutely; the Chief has the complete use of stool land as he pleases. Communal land on the other hand belongs to the community and is vested in the head of the community only as a sort of trustee. Going by the pleadings and the evidence in this case all the plaintiff was saying was that all land in Ife was communal land vested in the Ooni of Ife as a sort of trustee who could make grants of part of such land to any indigene of his choice. The defendant on the other hand was saying that each family in Ife had its own family land. In effect the defendant rebutted the plaintiff’s claim to communal land ownership of land in Ife. In my respective view the misconception of the case before him obviously blurred the learned trial Judge’s consideration of the case for the plaintiff.
I think Mukhtar, JCA was right when she observed in her concurring judgment that
“with due respect again, the learned Judge went on an unnecessary voyage of discovery when he suo motu conferred on himself the right to decide whether or not the land was a stool land.”
After citing some paragraphs of the amended statements of claim the learned Justice of the Court of Appeal went on to say:
“The way I understand the above averments, I do not think they evolve or signify stool land. Besides, there was no evidence by the plaintiff that the land he was claiming was a stool land. In the absence of this and the clarity in the said averments, the learned trial Judge (with due respect) had no right to import the issue of stool land into the case before him, not to talk of going it inextenso, for that matter.”
It is apparent that the trial Judge did not address his mind to the case put before him. The function of a court is to decide between the parties on the basis of the case put before it by them; it should confine itself to adjudicating on issues raised before it – Odiase v. Agho (1972) 3SC 71. It is not the duty of a trial Judge to find on an issue which was neither pleaded nor raised in the case before him – Balogun v. African Continental Bank Ltd. (1972) 1 SC 77; Adeniji v.Adeniji (1972) 4 SC 10, Animashaun v. Osuma (1972) 4 SC 200. In the circumstance, the court below was right in setting aside the judgment of the trial court.
The Court of Appeal however, went on to consider on the printed record the case of the parties and came to the conclusion that plaintiff’s case must succeed. In doing so that court unwittingly ascribed credibility to witnesses it did not see nor hear testify. I think the court went wrong there. The trial court having failed to make findings of fact on the case put before it by the plaintiff, it is not open to the Court of Appeal which did not have the opportunity of observing the witnesses give evidence to make important specific findings based, as it were, on the credibility of the witnesses – Anukanti v. Ekwonyeaso (1978) 1SC 37. The duty of ascribing probative value to evidence is a matter primarily for the court of trial. Where therefore, the trial court in this case had failed to address and determine the vital issue raised on the pleadings, the proper order to make is an order of retrial – Shell-BP v. Cole (1978) 3 SC 183. Having concluded as it did and rightly in my respectful view that the trial Judge did not address his mind to the case put before him, the proper order to make is one sending the case back for rehearing before another Judge. It is not for the court to ascribe credibility to witnesses it did not see.
To this extent, therefore, I must set aside that part of the judgment of the court below entering judgment in favour of the plaintiff. Consequently I affirm the judgment of the Court of Appeal setting aside the judgment of the trial High Court. I however, set aside its order entering judgment for the plaintiff. In the place of that order, I hereby order that this case be remitted to the High Court of Osun State sitting at IIe-Ife to be heard on the case as put forward in the pleadings of the parties. I make no orders as to the costs of this appeal but order that the costs in the two courts below shall abide result of the rehearing.
SC.15/1997
