Sunday Daniel Obiche V. John A. Adetona (2008)
LawGlobal-Hub Lead Judgment Report
DALHATU ADAMU, OFR, J. C. A.
This is an appeal against the judgment of the High Court of Lagos State, Ikeja judicial division in suit no. LD/1577/88 (Per A.J. Coker J) delivered on 18/4/2005. In the said suit (which was commenced by a writ of summons filed on 8/11/88) the respondent (as plaintiff) sued the appellant (as defendant) claiming (as per paragraph 15 of the supercedent (as statement of claim) as follows:
“15 WHEREOF Plaintiff claims:
(a) A declaration of title to the parcel of land lying situate and being at Oko-Oba, Agege, Lagos State measuring 1340.152 Square metres shown Oil survey plan No. JO204/82.
(b) N5, 000.00 (Five Thousand Naira) damages for acts of trespass committed by the defendant, his agents and/or servants; and
(c) Perpetual injunction restraining the defendant from committing further acts of trespass on the land. “- (See pages 4 – 5 of the record of appeal).
On the above claims, the defendant/appellant (hereinafter called the appellant while the plaintiff/respondent will also be simply called the respondent) filed a further amended statement of defence and counter-claim (see pages 8 – 12 of the records) wherein he counter-claimed for the same land (at paragraph 15 thereof) as follows:
“(i) A declaration that the purported GRANT of a lease by the ADETONA IYANRU FAMILY to the plaintiff is in view of the Lagos State High Court decision in Suit No. LD/292/81 delivered on 6TH June 1986, is INVALID because NEMO DAT QUAD NON HABET.
(ii) Another declaration too that in view of the decision of the LAGOS STATE HIGH COURT IN SUIT NO. LD/292/81 delivered on 6th June 1986 in which the OLAOROKUN FAMILY were held entitled to a STATUTORY RIGHT OF OCCUPANCY OVER ALL LAND MEASURING OVER 700 ACRES AT OKO-OBA, AGEGE LAGOS INCLUDING ABULE EGBA AND OTHERS” – the purported GRANT OF A CERTIFICATE OF OCCUPANCY NO. 30/30/89 IN FAVOUR OF THE PLAINTIFF BY LAGOS STATE GOVERNMENT ON 17TH
January 1989 is INVALID UNDER THE PROVISIONS OF THE APPLICABLE LAND LAWS OF NIGERIA.
(iii) A declaration that the Defendant is the legal owner of his land leased from OLAOROKUN FAMILY and to which is (sic) entitled to a peaceful and quiet enjoyment without any further interruption by the plaintiff. This land measures, 1340,152 acres in SURVEY PLAN NO. KAB/624/L/90 dated 15th December, 1990 drawn by KEHINDE ALLI BALOGUN, LICENCED SURVEYOR.
(iv) N20, 000.00 (Twenty Thousand Naira) damages for the constant harassment and acts of trespass committed by the plaintiff.
(v) A perpetual injunction restraining the plaintiff from committing further acts of trespass on the land.”
On the above claims and pleadings the respondent testified for himself and called two (2) other witnesses in proof thereof while the appellant also testified and called two (2) witnesses in support of his defence and counter claims. Learned counsel for the parties respectively addressed the Court and the trial Court on 19/1/05 adjourned for judgment on 30/3/05 but which was eventually delivered on 16/4/2005. The judgment was given in favour of the respondent whose relief of declaration of title, trespass and injunction were upheld and granted while the appellants counter claims were dismissed in their entirety. The sum of N25, 000.00 was also awarded as costs against the appellant and in favour of the respondent.
Dissatisfied with the judgment of the trial Court, the appellant now appeals in this Court against it as per his further amended notice of appeal dated and filed (with the leave of this Court) on 4/7/07 containing 12 grounds of appeal (with their particulars). Out of his 12 grounds of appeal, the appellant in his amended brief distilled the following 5 (five) issues for determination in the appeal:-
“(1) Whether the lower Court was right in holding that it was not called upon in this suit “to determine or cannot determine conclusively which of the vendors owns the vast area of land, not being in dispute” having regard to the pleadings and evidence of the parties and other findings of the Court inconsistent with this view.
(2) Whether the failure by the lower Court to determine (on the grounds that it was not called upon to do so) the crucial issue as to whether the evidence adduced by the plaintiff, who neither called a surveyor nor tendered a survey plan, was such that a surveyor who reads the record of proceedings can produce a plan showing accurately the land of the plaintiffs vendors, was not fatal to the findings of the Court that the plaintiff had proved his case for a declaration of title to the land in dispute.
(3) Whether upon the totality of the evidence the plaintiff had proved his case for declaration of title to the land in dispute.
(4) Whether the lower Court was right in refusing to set aside and declare void the Certificate of Occupancy granted to the plaintiff over the land in dispute.
(5) Whether the lower Court was right in dismissing the defendants’ counter-claim for declaration of title to the land in dispute.”
Although no attempt has been made in the brief to relate or marry the above issues to the appellants 12 grounds of appeal, but that was done orally by his learned senior counsel Chief Uwechue, SAN at the hearing of the appeal on 23/9/08. According to him issue (1) relates to ground 12; issue (2) relates to ground 9; issue (3) relates to grounds 11 and 12; issue (4) relates to grounds 4 and 10 while issue (5) relates to ground 3.
From the above marriage of issues to the grounds of appeal made by the appellants counsel, it is clear that two issues are or have been formulated from ground 12 namely issues 1 and 3, this is contrary to the rules regulating the relationship of issues to the grounds of appeal. Under the said rules or principles, an issue can cover more than one ground of appeal but not the other way round, Thus under the said rules, not more than one issue can be based on or formulated under one or single ground of appeal as that would amount to proliferation of issues which is frowned at and discouraged by the courts – see LEEDO PRESIDENTIAL HOTEL LTD. VS.BON (NIG) LTD (1993) 1 NWLR (Pt.269) 334 at 347; UBA Vs MODE (NIG) LTD (2001) 13 NWLR (Pt. 730) 335; EGBE Vs. ALHAJI (1990) 1NWLR (Pt.128) 543; and KANO ILE PLC Vs. G & H (NIG) LTD (2002) 2 NWLR (Pt.751) 420.
Consequently under the above principle on the formulation of issues and their relationship to the grounds of appeal, it is wrong for the appellant to formulate two issues from ground 12 (i.e. issues, 1 and 3) as he did in his brief of arguments. On a closer look at the affected Issues, I found that while issue I is rightly related or married to ground 12; the same cannot be said on issue 3 which from its wordings (in an omnibus form) seems to be a challenge against the evaluation of evidence or misplacement of the weight of evidence by the learned trial judge. This is clearly outside the sphere of ground 12 which is a complain against the refusal of the learned trial judge to consider or decide on the question of which of the two vendors (or alleged predecessors in title) of the parties respectively owned the land in dispute. From my above analysis or surgical operation of the issues and the grounds of appeal, I am of the humble view that while issue 1 is rightly related to ground 12, issue 3 on the other hand is not related to the said ground. In the result, the said issue 3 is hereby discountenanced and ignored. It is also pertinent to state at this stage that from the marriage of issues, vis- a- vis the grounds of appeal by the appellants learned senior counsel, his five (5) issues are only married or distilled from 5 (five) out of his 12 (twelve) grounds of appeal. The remaining 7 (seven) grounds on which no issue(s) is or are formulated are deemed abandoned and liable to be struck out. The said 7 grounds from which no issues (s) is or are formulated by the appellant in the present case are grounds 1, 2, 5, 6, 7, 8 and 11. They are consequently hereby struck out. See EKE Vs. OGBONDA (2006) 18 NWLR (Pt. 1012) 506; NEWSWATCH COMMUNICATION LTD V. ATTAH (2000) 2 NWLR (Pt. 645) 592; SEKONI V. UTC (NIG) PLC (2006) 8 NWLR (Pt.982) 283; and AJE V. STATE (2006) 8 NWLR (Pt.982) 345.
In the respondents brief, the following 5 (five) issue were initially distilled as arising for determination in the appeal.
“1. Weighing the totality of evidence led by both parties at the lower court upon an invisible scale of justice, who out of the 2 (i.e. the original claimant or the counter-claimant) had shown better title to be entitled to a declaration of title to the land in dispute.
- Whether or not the Rule/Practice requiring a party to file a plan, composite plan or give oral description of the land in a way that a surveyor armed with such description can prepare a composite plan of such land, is relevant to land that is not in dispute and not claimed.
- Whether the failure of the lower Court to determine whether or not a surveyor can produce a survey plan of the plaintiffs vendors land based on the description given at page 19 lines 1-6; 23-33 of the record of appeal, is fatal to the finding of the lower court that the plaintiff had proved his case for a declaration of title to the land in dispute.
- Whether or not the lower court was right in refusing to set aside and declare void the Certificate of Occupancy granted to the plaintiff over the land in dispute.
- In deciding whether the decision of the lower court is against the weight of evidence at the lower Court, what would be the effect of the specific findings of facts not appealed against in this appeal, and whether or not the Appeal Court can temper with or interfere with the appraisal and probative value attached to parties evidence/testimonies and if not what effect will the trial court finding on the parties testimonies have on this appeal”.
The respondent learned counsel also did not relate or marry his above issues to the grounds of appeal. However before the hearing of the appeal, and on his own volition the same counsel informed us of the withdrawal of his issue NO.3 (as above reproduced) which was accordingly struck out together with the submission canvassed under the said issue 3 (as contained in pages, 16 – 18 of the brief). Even though the learned counsel for the respondent has stated that all the other or remaining 4 (four) issues are related to the appellants grounds of appeal and are predicated on the submissions in the appellants brief, I have a serious doubt on his issue NO.5. I will at the risk of repetition reproduce the said issue 5 again which is as follows:-
“5. In deciding whether the decision of the lower court is against the weight of evidence at the lower Court, what would be the effect of the specific findings of facts not appealed against in this appeal, and whether or not the appeal court can temper with or interfere with the appraisal of probative value attached to parties evidence/testimonies and if not, what effect will the trial courts findings on the parties testimonies have on this appeal?”.
From its wordings the above issue is, rather than being succinct precise and clear is both prolix and at large or ambiguous as it raises three questions making the said issue to be a three -in-one issue. Moreover, it is to be pointed out that as the issue is based on the omnibus ground as it speaks inter alia on the weight of evidence (see ground 5) the said omnibus ground has been abandoned by the appellant who formulated no issue on it. It cannot therefore be said to be based on the appellant’s grounds or any issue or submissions in the later’s, brief. Again, the respondents challenge (under the issue on review) against the findings of the lower court not appealed against in the present appeal is misconception as the said respondent who has not cross appealed or filed a respondents notice must not go outside or different from issues formulated by the appellant – see FIRST BANK (NIGERIA) LTD. Vs. KHAKADU (1993) 9 NWLR (Pt.315) 44 at 53; IDIHA Vs. UZOUHWU (2008) 9 NWLR (Pt.1091) 34 at 53 and 63; State V. AZEEZ (2008) ALL FWLR (Pt 424) 1423 at 1463; and OBASANJO V. BUHARI (2003) 17 NWLR (Pt.850) 510 AT 554. The respondent issue NO.5 also raises a new issue (not arising from the appellants issue and not related to any of the grounds) of evaluation or appraisal of evidence by the lower court and ascription of probative value to such evidence. This is a new issue raised in the appeal which, under the rules, requires leave of this court before it can be validly or competently raised. The respondent failure to secure and obtain such leave before raising the question in his issue 5 is fatal to the said issue which is rendered incompetent. It is amongst other reasons liable to be struck out. On my consideration of issue 5 of the respondent it is hereby struck out for being prolix, ambiguous proliferated and unrelated to any of the grounds of appeal or the issues formulated and argued by the appellant (in the appellants brief). Consequently after the striking out of the two issues of the respondent (one by his withdrawal i.e. issue 3) and the other for incompetence, his net or surviving issues will now be three (3) namely issues 1, 2, and 4. In the determination of the present appeal, I will rely on the appellants 4 surviving issues with their reply (if any) from the respondents brief also under the laters surviving issues. The reply brief filed by the appellant (dated and filed on 5/9/07) will also be considered appropriately and when the need arises.
Issues 1 and 2 of the appellants brief are both on the proof of the extent and ownership of the vast area of land said to be owned respectively by the two families (or vendors) from whom the parties in the present appeal claim to have bought the plots of land in dispute. The two issues can therefore be combined and treated together. I will therefore treat the two issues together while the remaining of the surviving two issues of the appellant (i.e. issues 4 and 5) will be treated separately.
Under the twin issues (1& 2) the appellant’s complaint is against the two inconsistent holdings of the learned trial judge where he declined to determine the extent and ownership of the vast area of land allegedly belonging to the two families who were the vendors and from whom each of the parties in the present case respectively claimed to have acquired (by lease) the land in dispute.
Firstly it is contended that the crucial issue or question in the case was identified by the learned trial judge as the determination of which of the two vendor families owned the vast land which the land in dispute (ie. the two plots) forms part of. It is alleged in the brief that the learned trial judge was wrong by declining to resolve that crucial issue in his judgment on the ground that he was not called upon to do so – see page 89 (lines 15 – 18 of the record of appeal). Secondly the brief also argues that after setting out the acid test for identifying the land in dispute with certainty based on the supreme courts dictum in THOMPSON VS. AROWOLO (2003) 7 NWLR (Pt. 818) 163 (per AYOOLA JSC) to wit that a surveyor armed with such a description can produce a plan of the land in dispute, the learned trial judge in his judgment refused to apply the said acid test in the following holding ( at page 89 (lines 6 – 8 of the record)
“Whether a surveyor can produce a survey plan of same is a different issue and one which this court is not called upon to determine”
It is the appellant’s contention that the above holding of the learned trial judge led him to hold or find that the respondent as plaintiff, who did not file any composite plan of the land in dispute had proved a better title than the appellant (as defendant) who had filed such a plan and was therefore more entitled to a declaration of title or ownerships of the land in dispute.
It is contended in the brief that the respondents failure to tender any plan at all to identify the vast land he alleged to be owned by his vendors (family) was fatal to his claim. It is submitted that the learned trial judge made a serious error in his judgment (at pages 88 and 89 of the record) where he deliberately refused or declined to resolve the crutial issue, he identified based on the acid test and thereby found for the respondent despite his failure to satisfy the said acid test. – see KWADZO V. ADJA (1944) 10 WACA 274; ARCHIBONG Vs. ITA (2004) 2 NWLR (pt. 858) 590 and LEWIS Vs. UBA (2006) 1 NWLR (Pt. 962) 546 at 566 cited and relied upon by the appellant on the above submission, It is finally argued (under the twin issues) that the proper order to be made by the trial court should have been the dismissal of the respondents claim for his failure to file a plan (or a composite plan) or to prove his claim before the court on balance of probabilities – See BANKOLE Vs. DADA (2003) 11 NWLR (Pt. 830) 174; BANKOLE Vs. PERU (1991) 8 NWLR (Pt. 211) 523 at 541; THOMPSON Vs. AROWOLO (Supra); FAGUNWA Vs. ADIBI (2004) 17 NWLR (Pt.903) 544 at 568; and OTANMA Vs. YONDUBABAGHA (2006) 2 NWLR (Pt. 964) 337 at 365 cited in further support of the appellants above submission.
As stated earlier, the respondents 3rd and 5th issues having been struck out, he is left with only three (3) surviving issues left (i.e. issues 1, 2, and 4). It is however to be noted that after proffering submissions on the said surviving issues, the respondents learned counsel by way of duplication went on desperately to make or canvass another set of submission in what he described as “RESPONDENTS’ REPLY TO ISSUES RAISED IN THE APPELLANTS’ BRIEF” covering pages 22 – 28 of the brief. This is very confusing and the unnecessary duplication or repetition of his arguments or submission in the brief cannot in any way assist the said respondent and would not improve his case, or its quality.
In the circumstances I will consider the respondents later and 2nd set of submissions (which are made subsequently in the brief) as they relate to or are relevant to the twin issues and to all the issues of the appellant. They are more relevant as they are said (in the brief) to be by way of reply to the appellants issues. The 1st set of submissions in the respondents brief (covering pages 9 – 22 and are a mere duplication or repetition) are hereby discountenanced and regarded as a mere supplausage. I will proceed to consider the 2nd set of the respondent’s submission under the twin issues and in reply to the appellant’s submissions thereto as set out above.
Under the twin issues, the respondent debunked the appellant’s submission that the learned trial judge failed to consider or resolved the question or issue on which of the two vendor families owned the land in dispute or had a better title to the said land in dispute. The respondent argues that the remark quoted and attributed to the learned trial judge by the appellant (from page 89 of the record) was only a side remark and was not a conclusion or finding reached on the question ( or issue). It is pointed out that the learned trial judge immediately (in the same passage not fully quoted by the appellant) proceeded to look at other evidence adduced and placed it on the imaginary scale before reaching his conclusion that the totality of the evidence adduced by the plaintiff respondent was more credible, consistent and reliable – See the same page 89 2nd paragraph referred to in the respondents brief in support of his above argument.
On the appellants complain against the failure of the learned trial judge to determine or ascertain the boundaries of the vast expense of land said to be owned by the two families the respondent argues that such failure cannot be fatal to the decision in the present case because the issue of the two families boundaries was not an issue in the case. This is said, to be because the claim in the present case was on the two plots of land rather than the vast land of their vendor’s families. Moreover, it is pointed out that the representatives of the two families had testified on the fact that the two plots claimed were within their families land and it was then left for the learned trial judge to choose whose versions he preferred or believed. It is further pointed out (in the respondents brief) that the composite plan filed by the appellant was found by the learned trial judge as unreliable and cannot be relied upon to prove the scope or extent of his vendor’s family land which had suffered or was the subject of many litigations – some of which had been decided in favour of the respondent – See THOMPSON Vs. AROWOLO (supra) relied upon by the respondent in his above submissions. The respondents further submits that the only duty on the respondent to prove his claim of title to the two plots was to show that the land in dispute (i.e. the 2 plots) is certain and identifiable to all the parties in the dispute either by the production of a survey plan or by a description that is capable of guiding a surveyor to produce a plan for the land in dispute. It is pointed out that the respondent had discharged his burden on the identity of his land by producing and tendering a survey plan and also giving evidence of proper description of the plots he claimed. Thus the respondent submits that since both parties and the surveyor gave evidence on the identity of the plots of land in dispute they are thereby in agreement on its identity, – see page 19 of the record). Consequently the learned trial judge accepted and relied on it in his judgment.
It is stated that the acid test mentioned by the learned trial judge in his judgment is only for his guidance in determining whether or not the land claimed is properly identified or described by the claimant and in the present case the learned trial judge was satisfied with the evidence adduced by the respondent (which included a survey plan and the testimony of his witness) which was not disputed by the appellant. Thus, he consequently held so before proceeding to consider which of the two parties has proved a better title to the said land in dispute. Finally, the respondent’s brief urges this Court to hold that the respondent’s burden of proof of the identity of the land he claimed was only restricted to the two plots of land he claimed but did not extend to the whole vast area of land owned by his vendors family or the family of the appellants vendors. We are urged therefore to decide the twin issues or resolve them favour of the respondents.
In the appellants reply brief (dated and filed on 5/9/07) the appellant merely repeats what he described in his main briefs a “the central issue at the trial “and proffered a very short reply to the twin issues under consideration. The appellant’s reply under the twin issues because of its scanty nature can be reproduced (as it is in the reply brief) as follows:-
“3.2 ISSUE NO.1
FINDINGS OF FACTS NOT APPEALED AGAINST the appellant submit that he appealed against all findings of fact relevant to the appeal.
In the other hand, it is the respondent who failed to appeal against specific findings on (sic) facts’ and law by the trial Court on the most crucial issue – the question as to the proof of the title of the two vendors families set out in paragraph 3.1 above. The authorities cited by the respondent are not applicable to the appellant they apply to respondent who filed no cross-appeal.
3.3 ISSUE NO.2
Appellate court tempering or interfering with the appraisal of evidence by the lower court .
The submissions of the respondent’s counsel at pages I to II of his brief are mere general misstatements’ of the law. They do not apply to the appellants’ appeal”.
3.4 ISSUE NO.3 “- see pages 6 -7 of the reply brief.
Before resolving the twin issue, I am inclined to comment on the above reproduced argument from the appellants reply brief on the twin issues. In my humble view they appear to be very scanty and shallow and do not address the points raised in the respondents brief as earlier highlighted in this judgment. It is trite that the purpose of a reply brief is to address or serve as a reply to the points raised or arising from the respondents brief. In other words a reply brief rather than merely reasserting or strengthening what has been argued in the respondents brief as done in the above reproduced piece from the appellant’s a reply brief should properly and effectively respond or debunk the points raised by the respondent and in so doing the appellant should give good reasons or authorities to counter the respondents new points. Where that is not achieved as in the present case or where the reply brief fails to achieve that objective, the appellant is deemed to have conceded to the respondent’s submissions – see OLAFISOYE V. FRN (2004) 4 NWLR (pt. 864) 580; OGOEJOFO V. OGUEJEFO (2001) FWLR (pt. 63) 141; ONWUDIWE V. FRN (2006) 10 NWLR (Pt. 988) 988; OGBUCHIE V. ONOCHE (1988) 1 NWLR (Pt.70) 370; KHALIL Vs. YAR’ADUA (2003) 16 NWLR (Pt. 847) 446; and AJILEYE Vs. FAKAYODE (1998) 4 NWLR (Pt. 545) 184. Consequently, the reply brief in the present case which does not say anything apart from mere repetition of the respondent’s submission on the twin issues can be and is hereby disregarded. I did not believe that such a shallow and scanty submissions was proffered by the learned senior counsel for the appellant. In view of my above observation and finding on the submission in the reply brief, I will however treat the respondent’s submissions on the twin issues as unchallenged and as having been conceded by the appellant. I will now proceed to consider and resolve the said issues since the parties in the present case claim the relief of a declaration which is required to be considered on its merit even if conceded or unreplied – see OGOLO Vs. OGOLO (2006)5 NWLR (pt.972) 163; OMOTOSHO V. BON (2006) 9 NWLR (PT. 986) 573; BISSIMLLAHI V. YAGBA -EAST LOCAL GOVERNMENT (2003) FWLR (pt. 141) 1939; (2003) 4 NWLR (pt 810) 329; and LAMBO Vs. ADEFORIJI (2008) ALL FWLR (pt. 419) 566 at 574.
In resolving the submission on the twin issues as canvassed in all the briefs and as highlighted above, I will start by consideration of the competing nature of the claims of the parties before the trial court. While the respondent as the plaintiff claimed that he had purchased the two plots in dispute from ADETONA IYANRU family of OTA. Ogun State sometime in 1975, the defendant/appellant on the other hand claimed to have purchased his land (i.e. the two plots) from OLAOROKUN Family at Oko-Oba Agege. Also while the respondent made claims to declaration of title, damages for trespass and injunction against the appellant, the later also made a counter-claim for the same reliefs against the former in respect of the same land. From the above competing nature of the claims and the counter claims for declaration, damages for trespass and injunction, the parties have thereby made title or ownership an issue in the case and the trial court would only grant ownership to the party who proves or establishes a better title. So also in their ancillary claims for trespass and injunction which are based on possession, the court would only grant the said reliefs to the party who proves an exclusive possession or a better title – see OGUNLEYE V. ONI (1990) 2 NWLR (Pt. 135) 745; BAMGBOYE V. OLUSOGA (1996) 4 NWLR (pt. 444) 520; AKANO V. OKUNADE (1978) 4 SC 129; KAREEM V. OGUNDE (1972), ALL NLR 73; FASORO V. BEYIOKU (1988) 2 NWLR (Pt. 76) 263; AND OGUNBIYI V. ADEWUNMI (1988) 5 NWLR (Pt. 93) 215. For the purpose of proof of better title, both parties would be treated or regarded as plaintiff because of their competing claims and counter-claims. In other words both parties have the equal onus or burden to establish or prove their title by cogent and credible evidence which is acceptable to the Court in order to be entitled to the three (3) reliefs they claimed. In doing so, each of them as a claimant or a defendant/ counter-claimant is required to rely and on succeed the strength of his own case rather than on the weakness of his contemporary’s case subject to the exception of this principle namely that where the evidence adduced by the defendant supports the plaintiffs case the later can rely on such evidence to establish his own case – see EZEIGWE V. AWUDU (2008) ALL FWLR (Pt.434) 1529 at 1542; SHITTU V. FASHAWE (2005) ALL FWLR (pt. 278) 1017; (Supra); SANUSI V.
AMEYOGUN (1992) 4 NWLR (pt. 237) 527, OSHO V. APE (1998) 8 NWLR (Pt.562) 492; ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt. 424) 252; KADILINYE V. ODU (1935) 2 WACA 336 AND ADEGBAYI V. ISHOLA (2003) 11 NWLR (Pt.831) 343 at 369 -370; and ADENIRAN V. ASHABI (2004) 2 NWLR (Pt. 857)375 at 409. In the present case, the above general principle and its exception will apply to the parties so that each of them as plaintiff seeking for declaration and other incidental reliefs is required to rely on the strength of h is own case, but can also rely on the evidence of his contemporary which supports his own case, in order to establish or prove his title or ownerships of the land in dispute (i.e. the two plots).
The appellants complain under his 1st issue is against the refusal of t he learned trial judge to determine or resolve what was identified by the court as the central issue at the trial namely which of the two vendor families from whom the parties respectively claimed to have derived or acquired their title to the land was the true owner of the said land. It is the appellants contention that the learned trial judge made some remarks during the counsels address wherein he identified as a central issue that would settle the case, the question on which of the two family vendors owned the vast area of land where the two plots in dispute are located – see pages 59 and 89 of the record referred to. It is however pointed out that in the judgment the learned trial judge he later stated that the court was not called upon to determine that issue – see page 80 of the record. It is said that the U- turn made by the learned trial judge amounted to a gross error which is fatal and capable of vitiating the judgment of the learned trial judge. On the other hand, the respondent under the issue submitted that the remark made by the learned trial judge both during the address of counsel and in his judgment were merely made in passing and they did not constitute a finding of the Court. It is argued that counsel’s address no matter how brilliant, does not constitute evidence and it is only for the guidance of the Court. In the same vain it is also argued that it is not every error made by the trial Court that can lead to the reversal of its judgment unless the error leads to a miscarriage of justice. Commenting on the ownership of the vast land said to be owned by the vendor’s families of the parties, it is contended by the respondent that the dispute or claim is the present case did not involve the ownership of the vendor families (larger) land but is only confined to the two plots claimed by the parties. The vendor families were also said not to be parties in the present suit. Thus what the respondent was required to prove was his ownership of the land in dispute in any of the five ways of doing so as an enunciated in the celebrated case of IDUNDUN V. OKUMAGBA (1976) 9 – 10 SC 227.
The above submission can be better resolved by reference to the nature of the claim and pleadings of the parties. Each of the parties based his claim of title which is said to be derived from lease (or outright purchase) evidenced by a purchase receipt from their respective vendor families. The plaintiff / respondents receipt was issued to him in 1975 (see Exhibits A, A1 and C) by Iyanru family. The defendant/appellant from his pleadings claimed that the purchase receipt from his family vendors (Olarokun family) was issued to his father in 1974 and he later caused it to be amended into his own name in 1977 ( by the vendor family who endorsed his name on top of the receipt – (see Exhibits E & K). The plaintiff/respondent also pleaded that upon the purchase and grant of lease by his vendor family, he was also put into possession of the land upon which he erected a surrounding wall where- he put his brother (PW1) who operated a mechanic workshop thereat ( see paragraphs 4 and 5 of the statement of claim). Since then he has also been exercising or enjoying undisturbed possession and acts of ownership on the land until 1988 when the defendant/appellant trespassed on the land by forcibly entering into it and ejecting the tenant put therein by the respondent. Both parties also later prepared formal deeds of lease executed by their respective family vendors – though the appellant averred that his own deed from Olarokun family was stolen in 1985.
From the nature of the parties claims in which each associated it with a particular vendor family which sold the said land to them it appears that they both based their claims of title or ownership on a customary grant from the said families. The respondent also pleaded and proved that he was put into possession after the purchase, while the appellant did not prove that requirement under the Yoruba custom. It is trite that sale of land under the Yoruba native law and custom is proved by the payment of purchase price and the delivery of possession of the land by the head or principal members of the vendors family. It was rightly found in the present case that the respondent had pleaded and proved these requirements but the appellant did not prove them. Consequently the said respondent had proved a better title. Thus the land in dispute was only shown by the appellant to be sold to his father instead of himself and there is no evidence to show that either he or his father was ever put into possession by their purported vendor family – i.e. the Olarokun family – see OGUNBAMBI V. ABOWABA (1951) 13 WACA 222; ORASANMI V. IDOWU (1959) SCNLR 97; and AJAYI Vs. JOLAOSHO (2004) 2 NWLR (Pt. 856) 89 at 98.
It is also trite that ownership or title to land can be proved in any one or more of the following five ways:-
(a) by traditional evidence;
(b) by production of documents of title duly authenticated;
(c) By proof of acts of possession or ownership which include selling, leasing or renting out all or part of the land, or farming on it or a portion of it over a sufficient length of time to warrant an inference of exclusive Ownership of the land;
(d) By acts of long possession and enjoyment of the land; and
(e) By proof of possession of an adjacent or connected land in circumstances rendering it probable that the owner of such connected or adjacent land would also be the owner of the land in dispute. In the present case, the parties rely on documents of title (i.e. the purchase receipts and the deeds of lease they subsequently executed with their respective vendor families (see exhibits A, A1 on the one hand and E & K on the other hand) – see IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227; SANYAOLU V. COKER (1983) 1 SCNLR 168; ATANDA Vs. AJANI (1989) 3 NWLR (Pt.111) 511; MORENIKEJI V. ADEGBASIN (2003) 8 NWLR (PT. 823) 612, and THOMSON V. AROWOLO (2003) 7 NWLR (Pt. 818) 163 at 226 -227.
It is however to be pointed out that where a party relies on a customary grant or purchase of land, as in the instant case, and makes that as a basis for declaration of title in accordance with native law and custom by a particular person, family or community, that party (i.e. the claimant) must go further to plead and prove the origin of the title of that particular person, family or community unless that has been admitted by the adverse party. Thus mere production of a deed or a grant as in present case without proof of the root of the grantors title is not sufficient to confer title to the purported grantee. In the present case neither of the parties was able to establish or prove the roof of title of their purported vendor families to the land in dispute. The appellant’s attempt by the production of a composite plan of the vast land alleged to be his vendors land (the Olarokun family land) was not equivalent to legal proof of the title of the said family – see BAMGBOYE V. OLUSOGA (1996) 4 NWLR (pt. 444) 520; OGUNLEYE V. ONI (1990) 2 NWLR (pt. 135) 745; KALIO V. WOLUCHEM (1985) 1 NWLR (Pt. 4) 610. This explains why the appellants witness (DW3) under cross – examination rightly stated the purpose or essence of a Survey Plan (as quoted in the judgment of the trial court) as follows:-
“There is nothing stopping any surveyor working on an already prepared survey. The essence of survey does not guarantee real ownership of any land. It is merely to print the land on to paper or any or any document which is … may be fake or good. It is not for the surveyor to determine right of ownership unless the case has been decided by the court…. Every survey is said “to belong to”. Surveyor does not know the propriety of the ownership of any land” underlining is for emphasis – see also page 48 of the record.
The learned trial judge made reference to this evidence of the surveyor when resolving the so-called central issue which the appellant said under his 1st issue was not resolved when he observed in the judgment ( at page 89 of the record) as follows:
“As it stands therefore there is the possibility that either family can own the vast area of land in which the 2 plots in dispute herein fall. This court must observe at this stage that endless, unnecessary, and protected (sic) litigation could be avoided if the 2 families that is IYANRU and OLAROKUN Family (sic) did take each other to court for a proper determination of or settled their actual boundaries instead of shifting the said burden into individual purchasers or leases”.
From the above quoted dictum of the learned trial judge, it is clear that the so called central issue on which the appellant placed so much heavy weather and reliance under the 1st issue has actually been resolve by the learned trial judge. The appellant submission under the 1st issue is therefore misconceived. It is pertinent to point out as earlier stated that mere proof of the area in dispute which in the present case was said to be done by tendering a survey plan or a composite plan does not of itself alone constitute evidence of title or ownership of the land (i.e. the two plots) in dispute unless of course the said plans are used to show one of the methods of proving title by evidence of ownership of an adjacent land (i.e. the 4th method) in order to give a presumption that the owner of the adjacent land is probably also the owner of the land in dispute which is not the method adopted by either of the parties in the present case for the proof of their title or ownership of the two plots in dispute. In any case the only person or persons who can make such a claim under this last method should be the vendors families of IYANRU and OLAOROKUN who from the pleadings and evidence adduced are said to be the owners of the vast area of land in which the two plots in dispute are located rather than the parties in the present case who are mere purchasers or lessees of the two plots in question. In the circumstances and in view of my above observation and consideration, the 1st issue of the appellant which is misconceived should be resolved against the said appellant. The learned trial judge did the right thing when after his finding that none of the parties had proved the title of his vendor family; he went on to resolve their title by reference to acts in recent years. This is in accord with the principle in KOJO V. Bonsiel (1957) 1 WLR 1223.
The 2nd issue to the appellant which also accuses the learned trial judge of failing to determine the “crucial issue” as identified by the said learned trial judge namely on whether the respondent who did not call a surveyor or tendered a survey plan, by way of adducing credible evidence upon which a surveyor armed with the record of proceedings can produce a plan showing accurately the land of his vendor family has in my view been partially resolved in my above treatment of the 1st issue. As stated under the preceding issue 1, a survey plan per se does not confer title to the party or person who tendered it. Rather it is used for the purpose of giving an accurate and precise description of the land claimed with scientific or mathematical precision. It is the duty of every claimant of title to land to adduce evidence showing the clear identity boundary and other features of the land he claims. This duty or burden can be discharged by evidence of the description, boundary area and other features of the said land in dispute. It is for the purpose of more accuracy or precision in identifying the land with mathematical accuracy or in a scientific manner that some claimants resort to the use of a survey plan. Sometime where the party claims the ownership of a larger or vast expense of land including the land in dispute or where the land in dispute is also located a composite plan is filed to show the vast land as well as the plot in dispute verged in a different or specific colour. Although a survey plan whether composite or confined to the land In dispute is recommended for its accuracy or precision in identifying the land, it is not necessary or a sine qua non in the identification of the land claimed where such can be proved by other evidence (mostly oral). Indeed both the oral description of the identity of the land or the tendering of a survey plan may be dispensed with as unnecessary where the identity of the land is not in dispute or where it is well known by the parties. Thus it is only when there is a dispute as to the identity extent or area of the land in dispute that its identification by either oral evidence or survey plan (i.e. documentary) will be required. In the present case from the pleadings and evidence of the parties, the identify of the land is dispute and its area or dimension are not in dispute or are not made an issue in the case – see BARUWA V. OGUNSOLA (1938) 4 WACA 159; AWOTE V. OWODUNI (NO 2) (1987) 2 NWLR (pt.57) 367; EZUKWU V. UKACHUKWU (2004) 17 NWLR (Pt. 902) 227 at 249; OTANMA V. YOUDUBABAGHA (2006) 2 NWLR (Pt.337), OLADIMEJI Vs. OSHODI (1968) 1 ALL NLR 47; THOMPSON V. AROWOLO (supra) and ADENIRAN V. ASHABI (2004) 2 NWLR (pt. 857) 375 at 408.
As stated above, the identity, area, dimension and location of the plots in the present case were not in dispute. Moreover both parties tendered survey plans contrary to the appellant’s assertion that the respondent did not tender any plan at all. It is shown at page 23 of the record where the respondents plan was tendered and admitted as Exhibit B in the following dialogue:
“ADEPOJU: The survey plan. We seek to tender same.
ABDUL: No objection.
COURT: The Survey Plan No. ID/294/82 dated 25th November 1992 is hereby admitted and marked Exhibit ‘B’.”
Even though the respondent did not tender any composite plan, it was unnecessary for him to do so. It is also pertinent to point out that the composite Plan of the appellant on which he made a heavy whether under the issue even though admitted in evidence was criticized by the learned trial judge and rejected on the grounds that it was prepared while or after the suit was instituted in the following words (at page 90 of the record): “His survey Plan Exhibit L was made in 1990 well after the institution of this suit and which shows that the building could not have been commenced then as he said.”
In addition to the above, another feature which shows that the identity of the two plots in dispute in the present case was not in issue was the area or dimension or area of the land commonly given by the parties in both their pleadings and evidence as measuring 1340. 152 – See page 3 (paragraph 3) and page 8 (paragraph 3). The surveyor who prepared the two plans of both the appellant and the respondent also testified as DW3 – see page 85 of the record. In place of or as a substitute to a survey plan the respondent’s witness PW1 gave a full and vivid description of the larger area of land as follows:
“Our family has a wide expence of land in the whole OJOKORO area. OJOKORO starts from ALAGBADO and from left to OTTA Road and EKORO Road and back to ABULE-EGBA down to ABBATOIR TO IJU Road. On the right it goes to AGBADO – RAILWAY Station then to IJU ISHAGA. We sold part of our land to COKER, FRED WILLIAMS, JIBOWU, BECKLEY, IJAYE, COLE, HUGHES, BRIGHTON, FISHER and so many others. Those families and their children are still on the land we sold to them.
IYANRU family became owner by virtue of inheritance from our forefathers. – see page 19 of the record”.
Apart from establishing (by oral evidence) the identity of the land sold to the respondent the above quoted passage also proved the root of title of his family vendors – the Iyanru family- namely that they were vested with the land by virtue of inheritance from their forefathers. Thus the requirement of the root of title has also been satisfied. I therefore agree with the submissions of the learned counsel for the respondent that the statement made by the learned trial judge (at page 80 of the record.) that the court was not called upon to determine conclusively which of the two vendors family owns the vast area of land not being in dispute was made as a passing remark by the learned trial judge and did not amount to a finding of the said trial court before it embarked on the evaluation of the evidence adduced. Thus it went on immediately at the same page to state that the court must determine which of the parties (i.e. the appellant and the respondent) has on a preponderance of evidence adduced is entitled to ownership of the two plots in dispute. This is then followed by an evaluation and ascription of probative value to the evidence adduced by both parties in the suit; an area where an appellate court does not lightly interfere with. It is trite that the function of evaluation of evidence and ascription of probative value to the said evidence are the primary function business or responsibility of the trial court which had the advantage of seeing and hearing the witness and an appellate court having no such opportunity or advantage does not ordinarily or lightly interfere with such evaluation unless for compelling reasons or for perversity – see EBBA Vs. OGODO (2000) FWLR (Pt. 27) 2094; (2000) 10 NWLR (Pt. 675) 387; BALOGUN V. AGBOLA (1974) 1 ALL NLR (PT. 2) 66; AND OLUBODUN V. LAWAL (2008) ALL FWLR (Pt.434) 1 468; and ONWUGBOFOR V. OKOYE (1996) 1 NWLR (Pt. 424) 252.
In the present case the appellant has not shown any tangible reason (not to talk of a compelling one) why we should interfere with the trial court’s evaluation of evidence. The 2nd issue of the said appellant must also be resolved against him.
Under the 4th issue of the appellants brief, the appellants attack is against the holding of the trial Court (at p. 90 of the record) refusing to set aside the Certificate of Occupancy issued to the respondent by the Lagos State Government during the pendency of the case in 1989.
On this issue again, the appellant hinges his attack against the finding of the lower court mainly on the respondent’s failure to prove the ownership of the larger land by his vendor’s family. I.e. the Iyanru family by his failure to file a composite survey plan of the said larger area (or expense of land) in which the two plots in dispute are located or situated. The appellant relies on this submission on the following authorities cited in the brief: OGUNLEYE V. ONI (1990) 2 NWLR
(Pt. 135) 745 at 784; EKE V. OLUWA (2000) 14 NWLR (Pt 688) 560 AT 567; and TENIOLA V. OLOHUNKUN (1999) 5 NWLR (Pt. 602) 280 at 296 – 297. It is pointed out that the trial court erroneously held that the appellant did not ask it to set aside the said Certificate of Occupancy. Reference is made to the relief sought for by the said appellant in his counter-claim wherein he specifically sought for a declaration that the Certificate of Occupancy purportedly granted to the respondent was invalid “under the provision of the applicable land law in Nigeria,” – see paragraph 15 (ii) of the counter-claim at page 74 of the record referred to. It is pointed out that once the C of O is declared as null and void, the trial court ought to have set it aside in its consequential order. – see EBHOADAGHE V. OKOYE (2004) 18 NWLR (Pt. 905) 472 at 495 cited by the appellant in support of his above submission.
In the respondents brief in reply to the above submission, it is submitted that the appellants prayer in the counter-claim for the declaration that the C. of. O issued to the respondent was invalid is predicated or incidental to or on the fact of an earlier suit in ID/292/81 delivered on 6/6/ 86 in which the Olarokun family was said to be adjudged the owner of a vast land measuring 700 acres at Oko-Oba Agege. It is pointed out by the respondent that the said judgment was found by the trial court to be related to only 4 acres and the land covered did not include the 2 plots in dispute. Moreover the judgment did not state that the Olarokun family was entitled to the statutory right of Occupancy over the area. Thus since the court did not find as true that the judgment in Exhibit F related to the land in dispute and so it could not order the issuance of a C of O to the family vendors of the appellant or to the appellant himself, Nor would it set aside the C of O of the respondent on the basis of the said judgment. The respondent finally submits that the relief for setting asides the C of O was not specifically asked for and the judgment on which the appellants 2nd prayer in the counter-claim was hinged had been found to be irrelevant and the relief was therefore rightly refused.
In the reply brief, the appellants learned senior counsel in his usual manner proffers a very shallow and scanty submission (in 3 sentences) which can be reproduced here – under:
“RESPONDENTS ISSUE No. 6
The appellant adopts his arguments at pages 19-21 of his appellants brief. He wishes to stress that he did ask for declaration that the Certificate of Occupancy granted to the respondent be declared null and void. This was in paragraph 15 (1) of the statement of defence and counter-claim. Upon the dismissal of the respondents claim there would be no basis for the validity of the Certificate of Occupancy, granted over a non-existent right; particularly when such a grant was made in disregard of the court proceedings then pending over the issue.”
It is pertinent to point out that the respondent does not have any issue No. 6 throughout his brief. Moreover, the purpose and function of a reply brief is not to serve as a forum for stressing or repeating the argument or submissions of the appellant’s main brief. A reply brief is filed as an answer to the issue of law or arguments raised in the respondent’s brief calling for a reply. Thus it should be limited to answering any new points arising from the respondent’s brief. It is neither a recitation nor a repetition of the appellant’s submission in the main brief. Where the respondent does not raise new points the filing of a reply brief becomes otiose. In the present case from the above quoted single passage the appellant’s clearly repeated, adopted and stressed his arguments at pages 19-21 of his main brief and did not say anything more nor cited any authority to buttress the respondent’s submission on the point. The reply brief in the present case as it relates to the 4th issue therefore serves no useful purpose and it is otiose. It can consequently be disregarded – see OLAFISOYE V. FRN (2004) – (supra); OGOEJOFO V. OGOEJOFO (supra); ONWUDIWE V. FRN (supra); ENGINEERING ENTERPRISES V. A.G KADUNA STATE (1987) 2 NWLR (Pt.57) 381; EHOT V. THE STATE (1993) 4 NWLR (Pt. 290) 644; OCHEMAJE V. STATE (2008) ALL FWLR (Pt. 435) 1661 at 1681; and AJILEYE V. FAKAYODE (1998) 4 NWLR (Pt.545) 184. Thus it was better for the appellant in the instant case not to say anything at all in his so called reply brief under the 4th issue rather than the very shallow and poor passage he presented as his argument or submission under the said issue.
After my above highlight of the submission on issue No.4 from all the briefs the 1st point to consider in its resolution is its dependence on the judgment of the Lagos State High Court in suit
No. ID/292/81 (Exhibit F) which has been found by the learned trial judge to be unrelated to the land in dispute. This is clearly stated in the judgment at page 79 of the record as follows:
“3. that this disputed land is not the same as the 5 acres of disputed land in the High Court and court of Appeal judgment – (Exhibits F and G) in suit No. 1D/292/81 in the case of OGUNRO VS. OLAOROKUN Family upon which judgment was entered in favour of the Olaorokun family. Nor is it the same as plot 14 at Railway Station to which the Supreme Court judgment in THOMPSON V. AROWOLO (Pt.818) supra was entered against the Olaorokun Family.”
The above finding or holding of the lower Court is supported by the evidence of the surveyor who prepared the appellants composite plan (DW3) where he stated under cross-examination, as follows:-
“Yes I told the Court that Ogunro land is not the same as in this suit. Yes… I had worked for the Olarokun family as far back as 1976 in respect of the land verged Red in Exhibit Q. I would not be able to say if the land belongs to Olarokun family but I have been working on it for them for many years. Yes I gave evidence in the case of Thompson V. Arowolo. I would not know the stage now but at the lower court, I know the Olaorokun family won the two cases.”
Since the finding of the trial court is supported by the above evidence it cannot be interfered with under the general rule on the attitude of an appellate court towards finding and evaluation of evidence by the trial court. Thus it is not a perverse finding. Moreover, since the appellant had pleaded that the judgment in ID/292/81 was in his favour and his witness gave evidence which proved otherwise and therefore was at variance with that pleading, it is trite that under the rules of pleadings parties are bound by their pleadings and where a party pleads a particular fact but fails to adduce evidence in support thereof or the evidence adduced is contrary to or at variance with his pleadings, such goes to no issue and the relief claimed under such pleadings is deemed abandoned – see MOBIL PROD. NIGERIA UNLIMITED V. UMENWEKE (2002) 9 NWLR (Pt. 773) 543; KADILINYE V. ODU (SUPRA) LAMBO V. ADETUNJI (2008) ALL FWLR (Pt.419) 566 at 573; OTANMA V. YOUNDUBABAGHA (Supra); and GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1 SCNLR 117.
On my above consideration of the appellant’s 4th issue, the said issue and its related ground of appeal fail and should also be resolved against the said appellant.
The last and final of the appellant surviving issues is issue No. 5 under which the said appellant is challenging the dismissal of his counter-claim by the learned trial judge. As his 1st step under the issue, the appellant begins his submission on the issue by adopting his submissions under the preceding issues 1, 2, 3 and 4 which as we have seen above have all been resolved against the said appellant. This is followed by the appellant’s concession that the trial court is at liberty to choose the order to follow in its consideration of the parties’ respective cases as canvassed before it. His main grudge is however against the dismissal of two of his declaratory reliefs (from his counter-claim) before embarking on the consideration of the evidence adduced by the parties. This approach is said to be contrary to the rule that civil cases are to be decided on balance of probabilities consequent upon a proper evaluation of the evidence – see page 79 of the record referred to in the brief.
It is clear from the above concession of the appellant that it is within the discretion of the trial court to begin its consideration of the evidence adduced in the case by reference to either of the parties or by starting with either the main claim or the counter-claim. It is pertinent to point out on this complain of the appellant, as rightly done by the learned trial judge, that because of the competing claims of title in both the main claim and the counter-.claim, each party can be regarded or treated as a plantiff or as a defendant. This point was made clear by the leaned trial judge at page 78 of the record just before the setting out of the 7 undisputed facts complained against by the appellant (at page 79 of the record) in the following passage:-
“It must be stated from the onset and as rightly pointed out by the learned SAN that where there are competing claim for— title, each party has the onus of proving title on a balance of probabilities see OKHUAROBO V. AIGBE (2002) 9 NWLR (Pt. 771) 29 per UGUH JSC where he said @ 49′ the onus is as much on the Defendants in their counter-claim (as on the plaintiff in the main claim) to establish the counter claim in respect of title, trespass and injunction”.
The above finding or reason given by the learned trial judge before embarking on the consideration of the evidence adduced by the parties is in my humble view a proper and right approach. After all the appellant has conceded the liberty of the said judge to begin his consideration of the evidence adduced by either of the parties in view of their status as both the plaintiffs as well as defendants in the case due to or as a result of the counter-claim. Consequently, the appellants issue No 5 is a weak one which cannot sustain his appeal. I therefore agree with the respondent’s submission that the dismissal of the appellants 2 reliefs at the onset was proper as the said reliefs were based on the judgment in ID/292/81 (supra) which had been found to have no relevance or nexus on the land in dispute or parties in the present suit. In the result of my consideration of issue 5, it too must be resolved against the appellant and in favour of the respondent.
On my resolution of all the 4 (surviving) issues of the appellant against him, the appeal herein must be and is liable to be dismissed for lack of merit or substance. It is accordingly hereby so dismissed. The judgment of the learned trial judge which cannot be faulted is hereby affirmed and its final verdict entering judgment for the respondent and granting all his reliefs while dismissing the appellants counter-claim is hereby up-held. The respondent is entitled to the costs of the appeal which is assessed at N30, 000.00 hereby awarded in his favour and against the appellant.
Other Citations: (2008)LCN/2963(CA)
