Suraju Somade & Ors. V. Otunba Ayo Jaiyesimi & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
AUGIE, J.C.A
This is an appeal and cross-appeal against the Judgment of Olatoye, J., of the High Court of Ogun State, Sagamu, in the suit filed by the Respondents, wherein they claimed against the original Defendant (now deceased) – a declaration that “all that piece or parcel of land known as Sakura – – is the property of the Ipoji Community of Ofin Sagamu”; forfeiture of the customary tenancy of the Defendant and his family; and perpetual injunction, Pleadings were exchanged, but after a number of amendments, trial commenced with their 3rd Further Amended Statement of Claim and Plan dated 30th October 1997, filed together with an Amended Writ of Summons dated the same day.
In paragraph 51 of the 3rd Further Amended Statement of Claim, the Respondents claimed as per their writ of summons; and their claims against the present Appellants in the Amended Writ of Summons, are as follows-
- Declaration that the Plaintiffs are the persons entitled to the Statutory Right of Occupancy over and in respect of that piece or parcel of land known as Sakura situate, lying and being at Ofin, Sagamu, Ogun State, which is more particularly demarcated by Dispute Plan No. SAC/OG/025/97 dated 18/3/97 drawn by S.O.O. Ajayi, Registered Surveyor and verged ‘RED’ filed in the action herein.
- Forfeiture of the interest of the 1st & 2nd Defendants’ family over the portions verged “YELLOW’ in the said Plan which they hold as Customary Tenants of the Plaintiffs on the ground of misconduct.
- Possession of the land.
- Perpetual Injunction restraining the Defendants by themselves, their servants, agents, or privies from doing anything whatsoever on the Plaintiffs’ land.
The Respondents rooted their title to the land in dispute through one Odogu Arikemeku, a descendant of a Benin Monarch who migrated from a place called “Igboji” in the old Benin Kingdom, with his wife, Wure, their children, his relatives, his Diviner/ Ifa Priest called Tifase, and a slave called Orisakura.
On their part, the Appellants filed an Amended Statement of Defence and Counter-Claim on the 23rd of March 1998, wherein the 1st, 2nd, & 4th Appellants counter-claimed against the Respondents that they are the “persons entitled to the Statutory Right of Occupancy over the entire area known and called Sakura farmland – – and more particularly delineated and demarcated by Dispute Survey Plan No KLA/OG/70/97 of 23/09/97 (Area verged Orange). The 3rd Appellant also counter-claimed that “his family Ladejobi Family, are the persons entitled to the Statutory Right of Occupancy over the area of Ladejobi family land delineated and delineated and marked Green in the Dispute Survey Plan…..” The 4 Appellants asked for an order of perpetual injunction against the Respondents. The Appellants rooted their title through one Oba Owarodo, who partitioned his land inter vivos amongst his four children and domestics; his 3rd son , Osigade, the father of Somade who begat the Appellants was given the land, Sakura; and his 4th son Ladejobi was given the land known as Ladejobi.
At the trial that ensued, the Respondents called 8 witnesses and the Appellants also called 8 witnesses in proof of their claims, and thereafter, their counsel filed written addresses as agreed to. The lower Court delivered Judgment on the 19th of November 1999, wherein it was stated as follows-
“- – No side seems to be entitled to the Judgment of this Court. The only alternative is to non-suit the action. That relief is not claimed by either the Plaintiffs in the Statement of Claim or Reply to the Statement of Defence nor in the Statement of Defence and the Counter-Claim included therein by the Defendants. – – – I hereby call on both counsel to address me on this issue of non-suit”.
After hearing the submissions of counsel, the lower Court held as follows-
“I have considered the above submission of both counsel. Both of them seem to be apprehensive that the Ogun State High Court Rules having not specifically provided for it, this Court cannot make such an order of non-suit. It is therefore better for me to err on the side of certainty. Instead of order of non-suit, an order of striking out may be more appropriate. In the circumstances, and in view of what I said in this Judgment, that neither side is entitled to the Judgment of this Court as claimed, this case is struck out. No order as to costs”.
Both parties are dissatisfied with the above order of the lower Court and have appealed to this Court; the Appellants by an Amended Notice of Appeal containing 10 Grounds of Appeal, and the Respondents by an Amended Notice of Cross- Appeal containing 6 Grounds of Appeal. Briefs were duly filed and exchanged, and in the Cross-Appellants’ brief, a Preliminary Objection was raised as to the competence of the Appellants’ brief, on the ground that it was filed before the Court order to amend the Notice of Appeal. The objection was however not argued at the hearing of the appeal and will be discountenanced. The Appellants formulated the following 8 Issues for Determination in their brief prepared by Prince S. Ola Oyefeso-
- Whether the Plaintiffs who rooted their title through ownership by settlement and who failed to plead their genealogy and also failed to link themselves to the person or persons that claimed to be the original settler or settlers with uncertain identity of land in dispute should not have got their action/claim dismissed as opposed to striking out.
- Whether the land in dispute is family or communal land and whether the two are interchangeable.
- Whether the identity of the land in dispute was certain.
- Whether the Plaintiffs who claim possession as a relief could later turn round to contend that they have been in possession at all times material to the same suit where they are asking for possession.
- Whether the Plaintiffs who contended that Defendants are in possession of the land in dispute or part thereof as “Isakole” paying tenants and failed to prove same could have been entitled to Judgment either for declaration of title or forfeiture or both.
- Whether the counter-claimants who premised their claims on ownership by settlement from time immemorial and who pleaded and led credible evidence of their genealogy from the original settler to themselves (the counter-claimants) are entitled to Judgments in their favour against the Plaintiffs who failed to prove their own root of title.
- Whether the Appellate Court is not in a position to re-evaluate the comprehensive evidence as contained in the printed record when the striking out of the Appellants suit was not based on question of credibility of their witnesses.
- Whether the decision of the trial Court should be disturbed having regard to the evidence.
The Respondents however submitted in their brief prepared by Olaniyi Salau, Esq., that the following two issues arise for determination in this appeal –
(1) Whether the learned trial Judge did any evaluation, wrong evaluation or resolution of the conflicting evidence on vital issues in the cases of the respective parties which is capable of being disturbed or re-evaluated by the Court pf Appeal, and if the answer to the above is the negative, whether the Court of Appeal can assume the role of the trial Court to evaluate the evidence and resolve those issues by itself.
(2) Whether the Defendants/Appellants proved title to the land in dispute.
The Respondents as Cross-Appellants formulated similar Issues, as follows –
(i) Whether the learned trial Judge did any evaluation of the evidence or resolution of the conflicting evidence on vital issues in the cases of the parties, and if not, whether the Court of Appeal can assume the role of the trial Court to evaluate the evidence and resolve those issues by itself.
(ii) Whether the identity of the land being claimed by the Plaintiff/Cross-Appellants was not reasonably certain.
(iii) Whether the Defendants/Appellants proved the title to the land in dispute.
(iv) Whether Exhibits ‘G’, (‘Gi’), ‘K’, & ‘L’ being photocopies of public documents not certified as true copies in compliance with Sections 109(i) (b) & 116 of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990 are admissible in evidence.
In my view, the core Issues that will determine both the appeal and cross-appeal is whether the lower Court properly evaluated the evidence before it; whether striking out the claims of both parties was the proper order to make, and whether this Court can re-evaluate the evidence or order a retrial.
The Appellants’ position is that the trial Court should have dismissed the Respondents’ case instead of striking it out because the Respondents failed to prove their claim to the land in dispute. It was submitted that the Respondents did not plead their genealogy hence they totally failed to link themselves to the said Arikemeku, etc., through whom they rooted their title, citing – Adisa V. Oyinwola (2000) 6 SCNJ 290; Lawal V. Olufowobi (1996) 12 SCNJ 376; Obawole V. Williams (1996) 12 SCNJ 415; Eboade V. Atomesin (1997) 5 SCNJ 13; Uehendu V. Ogboni (1999) 4 SCNJ 64; Ude V. Chimbo (1998) 10 SCNJ 23. & Olohunde V. Adeyoju (2000) 6 SCNJ 470 where the Supreme Court per Iguh, JSC held as follows-
‘In this case, the Plaintiff adduced no evidence whatsoever, whether credible or incredible, as to the root of title he pleaded and as to devolution of the title claimed from Efun down to himself. Having thus failed to establish the case put forward by him in his pleadings, the Plaintiffs case ought to have been dismissed by both Courts below”.
They also cited Eze V. Atasi (2000) 6 SCNJ 209, where Uwaifo, JSC held-
“The law is that to establish the traditional history of land relied on as root of title, a Plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor (s) and lead evidence to support without leaving gaps or creating mysterious or embarrassing linkages which have not been and cannot be explained. In other words, the leading of the devolution and the evidence in support must be reliable, being credible or plausible. Otherwise the claim for title will fail”.
It was further submitted that the Respondents failed to prove the identity of the land in dispute, which is another ground for the trial Court to have dismissed their case instead of striking it out. They pointed to Exhibit A, the Dispute Survey Plan prepared by the Respondents that encompassed Ipoji Homestead, which they argued is not what the Respondents are claiming in their Writ of Summons, the evidence of D.W.1. the Appellants’ Surveyor, that there is no where the land in dispute “is described, defined or delineated from the total area shown in Exhibit A, and argued that despite the conclusion of the trial Court that -“the plan filed by the Plaintiffs does not really support the evidence of the Plaintiffs”, the lower Court refused and or neglected to dismiss the Respondents’ case against the principle of law settled by EPI V. Aigbedion (1973) NMLR 31, & Babatola V. Alaworoko (2001) 6 SCNJ 146.
The Appellants further submitted that whereas the Respondents claimed Sakura farmland to be communal land of Ipoji, yet they produced evidence which clearly showed that the land in dispute is a family land, referring to Exhibit B, which they argued is not only an admission of the counterclaimants’ case that Sakura farmland is family land but also “knocks bottom out of the communal claim” of the Respondents on Sakura land. It is the Appellants’ contention that the Respondents who want declaration of title of the land in dispute as a communal land cannot turn round to have the land granted to them as family land, which is not the same as communal land, citing Ude V. Chimbo (supra), Fasoro V. Beyioku (1988) 2 NWLR (pt 76) 263 @ 271, & Onyejekwe V. Onyejekwe (1999) 3 5CNJ 23 @ 73 & 87.
On their part, it was submitted in the Respondents’ brief that issues were joined on the pleadings as to who first settled on the disputed land but the lower Court did not consider or evaluate the evidence led, as it did not weigh or ascribe any probative value to the conflicting evidence with a view to resolving the issues joined; that all the trial Judge did was actually to summarize the evidence led by both parties; and citing Imah V. Okogbe (1993) 9 NWLR (pt. 316) 159 @ 177, that the end result is non-finding as opposed to perverse finding. It was further submitted that a Judgment of a Court of record must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the result of such exercise, citing Ojugbue & Anor V. Nnnubia & ors (1972) 1 All NLR (pt. 2) 226 & Okonji V. Njokanma (1991) 7 NWLR (pt. 202) 131. They were however more specific in the Cross-Appellants’ brief wherein it was argued that what the trial Judge called findings at pages 311 -311 of the record, are not findings at all; that his statement ”the evidence produced in Court by both parties could lead to the following findings” shows he was unsure of what findings to make, as “could” means “used to show that something is or might be possible”. Furthermore, that a more than cursory analysis of the so called findings shows that they are a mere confused re-statement of the evidence led and not evaluation of evidence, citing Imah V. Okogbe (supra).
Now, “finding of fact” means a determination of a fact by the Court, averred by one party and denied by the other, and founded on evidence in a case – see Black’s Law Dictionary: 6th Ed. See also Fointrades Ltd. V. Universal Association Co. Ltd. (2002) 8 NWLR (pt. 770) 699, where the Court held that although any affirmation of fact embodied in the Judgment of a Court may loosely be referred to as a finding on that fact, the term “finding of fact” is more appropriately employed to describe an affirmation of fact made after considering evidence.
There is, therefore, a difference between reviewing the facts of a case and making findings of fact. The latter comes after evaluation of evidence – see Adike V. Obiareri (2002) 4 NWLR (pt. 758) 537. In this case, after setting out the evidence of both parties and address of counsel, then itemizing a “compression of the issues highlighted by learned counsel for the Defendants”, the lower Court proceeded to set out “evidence produced in Court by both parties”, which he said “could lead to the following findings”-
i. That Sakura land is the land in dispute and is surrounded on some sides by Ipoji land.
ii. That the Plaintiffs are also members of Ipoji Community.
iii. The Defendants are also on part of the disputed Sakura land – some of their members were said to have been granted portions thereof by the Plaintiffs to do farming.
iv. That two ancestors were named as founders of Sakura land. The Plaintiffs stated that their ancestor was Odogu Arikemoku while the Defendants testified that their own ancestor was Owarodo, the father of Osigade to whom they said Isakura land was apportioned.
v. There was no conclusive previous litigation between the parties on this matter although letters have been exchanged between them.
vi. The land which was formerly restricted to farming is now being used for building houses along Ayepe Road.
vii. Ogun State Government has acquired part of the land for the purpose of building Ogun State University Teaching Hospital (OSUTH) Sagamu. It was verged BLUE on Exhibit ‘A’.
viii. Both parties seemed to have been involved in giving consent for the Government acquisition which was granted through the Akarigbo of Remo Land. Also the land verged GREEN on Exhibit A was acquired by the Ministry of Agriculture for use as Rubber plantation along Ikenne, Sagamu.
ix. Sagamu Local Government also acquired part of the land for erecting Offin High Court.
x. Ladejobi family, a branch of Somade family of the Defendants, claimed ownership of the same area verged GREEN on the Exhibit A of the Plaintiffs.
xi. In view of the evidence in Court, the portions which the Plaintiffs could lawfully lay claim to is the remaining parcel of land after the extraction of ail the Government acquisitions. These would be the area where you have portions marked YELLOW and numbered “A”, “B”, “C”, and “D” for four Somade family relations.
xii. It is the 4th Defendants who is the present Bale of Sakura village.
Although that installation was said to have been restricted unsuccessfully by the Plaintiffs. Suit No. HCS/4C/79 was said to be on the genealogy of the Defendants as descendants of Owarodo.
xiii. Suit No. HCS/15/91 was also said to have decided on the genealogy of the Defendants.
The lower Court went on to state as foilows –
“In view of the findings from the evidence adduced before the Court, the issues for determination are still far and wide. As to who is the original settler of the land, evidence from both parties are at variance.
Obviously, what the lower Court said “could” be findings were not findings at all, but a summary or restatement of evidence, which is not the same thing as evaluation of evidence. Evaluation of evidence entails the assessment of evidence so as to give value or quality to it; it involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – see Oyekola V. Ajibade (2004) 17 NWLR (pt. 902) 356, & Idakwo V. Nigerian Army (2004) 2 NWLR (Pt. 857) 249. Be that as it may, the lower Court’s reasoning for concluding that the Respondents are not entitled to the declaration sought is stated at pages 313 – 314 of the record-
“Most importantly, the plan filed by the Plaintiffs does not really support the evidence of the Plaintiffs. The Claim by the Plaintiffs is for the area verged RED on Exhibit “A”. – – – As shown in the Survey Plan a large shunk (sic) of the landed property said to belong to Ipoji Community has been acquired by the State Government and Sagamu Local Government for construction of the Teaching Hospital (OSUTH) the Rubber Plantation and Offin High School. Also Ladejobi family has claimed portion of it. That was why the 3rd Defendant applied for and was made party to this suit. If the area marked GREEN and BLUE have been acquired by the State and Local Governments for use for public purposes, this Court cannot give Judgment which will cover the acquired portions. The Plaintiffs can no longer be adjudged to be entitled to Statutory Right of Occupancy over the whole parcel of land. In law, the legal consequence of an acquisition is that all rights, customary or statutory are canceled or suspended by such acquisition”.
The Appellants submitted that the above conclusion of the lower Court is a “positive finding of fact” which they are not complaining about, rather their complaint is that with the finding supported by evidence, the ultimate decision of the trial Court should have been a dismissal of the Respondents’ case and not a striking out as decided by it. Furthermore, that the trial Court made no proper appraisal and evaluation of the whole case, which failure occasioned a miscarriage of justice against the Appellants; and that this Court is in as good a position as the trial Court to evaluate and appraise the pieces of evidence both oral and documentary led at the trial, which the trial Court failed to do, citing Uzochukwu V. Eri (1997) 7 SCNJ 238, Salako V. Dosunmu (1997) 7 SCNJ 278, & Ezeafulukwu V. John Holt (1996) 2 SCNJ 104.
The Respondents/Cross-Appellants however submitted that it is now well settled that where a trial Court failed to make findings of fact in a case before it, and thus resolve the issues that arose from the pleadings, and the case cannot be decided otherwise than by resolving conflicting testimonies of witnesses of the parties, an appellate Court will order a re-trial of the action, citing Karibo V. Grend (1992) 3 NWLR (pt. 230) 426, Okedare V. Adebara (1994) 6 NWLR (pt. 349) 157, & Atanda V. Ajani (1989) 1 TWLR (pt. 1) 135. It was further argued that this is not a case in which this Court could make its own findings without assessing the credibility of witnesses; as there is no way it can make a finding without crediting one side and discrediting the other, citing Onyekanonwu & ors V. Ekwubiri & Ors (1966) 1 ALL NLR 32, Idika V. Erisi (1988) 2 NWLR (pt. 78) 563, Bamgboye V. Olarenwaju (1991) 4 NWLR (pt. 184) 132, Hayaki V. Dogara & Ors (1993) 8 NWLR (Pt. 313) 536; & Olufosoye V. Olorunfemi (1989) 1 NWLR (pt. 95) 26.
As I stated earlier, the lower Court did not making any findings of fact in the strict sense of the word, rather it summed up the gist of the evidence adduced by the parties, which is not the same thing as evaluation of evidence – see Oyekola V. Ajibade (supra). In such a situation, this Court is in as good a position as the lower Court to do, and will do its own evaluation.
It is after all trite law, that where and when the evaluation of evidence does not involve the credibility of witnesses and the complaint is against the non-evaluation or improper evaluation or appraisal of evidence tendered before the trial Court, then an appellate Court is in as good a position as the trial Court to do its own evaluation. I am also of the view that a retrial will not be in the interest of justice. A retrial is a new trial of an action that has already been tried, and this Court must be satisfied before ordering a retrial that:
- The other party is not thereby being wronged in a manner that there would be a miscarriage of justice; or
- It cannot, in the exercise of its appellate jurisdiction, do justice in the case and bring all the litigation to an end; or
- The justice of the case, looked at in all its special circumstances, justifies it. See Eke V. Okwaranyia (supra).
See also Tinubu V. Khalil & Dibbo Transport Ltd. (2000) 11 NWLR (pt.677) 171 where the Supreme Court held as follows:
“When a trial Court fails in its appraisal of evidence and the appellate Court is in as good a position as the trial Court to reappraise such evidence and make appropriate findings thereon from the printed record and/or documents put in evidence, it will do so instead of ordering a retrial” (Italics mine)
In this case, it will not be necessary to order a re-trial. There is enough evidence in the printed record and documentary evidence that has no bearing on the credibility of witnesses, which this Court can use to evaluate the evidence and bring the litigation to an end, one way or the other. As for the law involved, it is now settled that there are five ways in which ownership of land may be proved. Fatai-Williams, JSC (as he then was) spelt them out in Idundun & ors V. Okumagba & Ors (1976) NSCC 445, thus-
“Firstly, ownership of land may be proved by traditional evidence – –
Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, unless they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract.
Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner.
Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done (See Section 45 of the Evidence Act). Such acts of long possession, in a claim for declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence; more-over under Section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title.
Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute (See Section 45 of the Evidence Act).”
A party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where as in this case, he relies on traditional history, and in addition acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of traditional history is unavailing – see Ezuchukwu V. Ukachukwu (2004) 17 NWLR (pt. 902) 227 SC See also Odi V. Iyala (2004) 8 NWLR (pt. 875) 283 @ 312, where Tobi, JSC stated as follows-
“In pleading traditional history, the Plaintiff is expected to narrate the genealogical tree from original owner, the ancestor, in generations appurtenant to him, down the line to the Plaintiff – One word which ties the genealogy and generations appurtenant to the original owner is “begat”, which in modem con is “begot”, meaning “to become the father of”. As modern pleadings no longer take the prototype of medieval language, the expression “begat” could be substituted for “gave birth to”. In view of the fact that the original owner “Okio” is not traced to the Appellants, there is a clear missing link in the genealogical tree and a court of law has no jurisdiction to supply it The point I am struggling to make is that if all the versions are correct, then the pleadings did not assist the case of the Appellants. A case is made in the pleadings and not on appeal. If pleadings are badly rendered, a party cannot repair them on appeal to his advantage”.
In other words, a party relying on evidence of traditional history must plead his root of title. Not only that, he must show in his pleadings who those ancestors of his were and how they came to own and possess the land and eventually pass it to him, or the claim fails – see Eze V. Atasie (supra).
In this case, the Respondents claimed that the land in dispute was part of the land originally settled upon by their progenitor, one Odogu Arikemoku through whom their Ipoji Community derived their title by inheritance – see paragraphs 10 – 18 of the Further Amended Statement of Claim at pages 139 – 148 of the record. As the Appellants rightly submitted, the Respondents did not plead or trace their genealogy therein to their said progenitor, Arikemeku. On the authority of Odi V. Iyala (supra) Eze V. Atasie (supra), and other Supreme Court decisions to that effect, their claim to title must therefore fail. What is more, on the authority of Ezuchukwu V. Ukachukwu (supra), Adisa V. Oyinwola (supra), and other Supreme Court decisions to the effect that it is not permissible to support or substitute a non-existent or failed root with acts of possession, which should have derived from that root, this Court cannot and will not look into the issue of acts of ownership and long possession predicated on the traditional history pleaded by the Respondents. What is certain is that the Respondents’ case stood no chance of succeeding.
As to the counter-claim filed by the Appellants, the lower Court held-
“On the counter-claim – – apart from their evidence that their genealogy has been traced to Owarodo, that the land in dispute was Ishakura family land and not part of Ipoji Community land, there is no sufficient evidence strong and positive enough to entitle them to the Judgment of this Court. It is true that they gave evidence that they are in possession, so also there is evidence that the Plaintiffs are also in possession of part or portion of the land in dispute”. (Italics mine). Without any hesitation, I must say that the lower Court was right on that score. Title to land presupposes exclusive right to the land in the sense that the party does not share the allodial right of ownership with any other person.
Ownership generally connotes the totality of or the bundle of the rights of the owner over and above every other person on a thing. It connotes a complete and total right over property. As Tobi, JSC pointed out in Fagunwa V. Adibi (2004) 17 NWLR (pt 903) 544 @ 568 -” The property begins with the owner and also ends with him. Unless he transfers his ownership of the property to a third party he remains the allodial owner”.
“Allodial” means “held in absolute ownership” – see Black’s Law Dictionary: 7th Ed. In this case, there was no evidence, “strong and positive enough”, as the lower Court put it, to show that the Appellants owned the land in dispute completely to the exclusion of the Respondents. In actual fact, the evidence before the Court showed that both sides had some relationship with the land. The Appellants, as Defendants/Counter-Claimants, averred as follows in paragraphs 43 & 44 of their Amended Statement of Defence –
43.On issues of acquisition of landed properties in Sagamu Area by the Government or its agents the Defendants aver that it was the Akarigbo that the Government usually consult for assistance in getting to the appropriate family land owners affected or to be affected by the acquisitions.
- Defendants aver that they were consulted and they gave their approval to the acquisitions that affected their family lands through the same mode; that is through Akarigbo.
The Respondents tendered Exhibit B, which is a letter dated 13th August 1986; signed by “Oba Tijani Olulu, Odogun of Ipoji”, “Oba Oyedele Akinyele, Lowa Ibu of Batoro”, & “Oba M.S. Awolesi Erinwole II, The Akarigbo of Remo Land”; it is addressed to the Secretary, Ogun State University Teaching Hospital, Sagamu, and the 1st paragraph reads as follows –
“We, the undersigned have the pleasure to inform your management Board that all the families whose land area fall within the area to be donated to the Teaching Hospital have been duly notified. We are happy to inform you that they have all consented to release the land for the use and development of the Teaching Hospital”.
Exhibit C is in Yoruba, but the English translation is in evidence as Exhibit E. Signed by two members of the Somade Family (Appellants’ Family), it is titled “Resolutions of the Ipoji Community Sagamu”, and reads as follows –
(1) The Ipoji Community intend to start granting the aforementioned lands to its members and its descendants for building purposes.
(2) If anybody contravenes or goes against the above resolutions the Ipoji Community will mete out punishment to such a person or hand him over to the Authorities.
(3) The aforesaid Resolutions of Ipoji Community concerns the land at Ipoji Homestead and Ishakura and all other lands belonging to Ipoji or wherever it has interests in any landed property.
(4) We are informing all descendants of Ipoji through the above Resolutions of the use to which we shall make of Ipoji lands.
(5) The entire Ipoji Community agree with the above Resolutions.
“THE FOLLOWING PERSONS WILL BE SIGNING DOCUMENTS”
Exhibits D & D1 are written by “S. Ola Oyefeso, Esq.”, to “His Highness, Oba Tijani Olulu, The Odogun of Ipoji”. Exhibit D dated 16th February 1985, and titled “Re: Somade Family Land at Ishakura, Sagamu” reads as follows-
“I am acting as Solicitor for .. on behalf of Somade family touching and concerning the Somade family Land at Isakura Sagamu. As your Highness ought to know the whole area known and called “Sakura” farmland belongs to the Somade family by settlement from time immemorial. The members of the Somade family had from time immemorial remained in undisturbed possession exercising maximum rights of ownership up till present time over the said Sakura farmland. It is there most embarrassing to my clients to see that your Highness and some people are now making desperate effort to turn the said family land into communal Land. I am further instructed to the effect that some people have been made to sign a document or so ignorantly in furtherance of the design. In conclusion I am mandated to inform your Highness and others that members of Somade family are not prepared to surrender their right of Occupancy on Sakuraland to any person or group of persons. I am endorsing a copy of this letter to Chief Olisa of Ipoji and the Olotu-Omoba of Ipoji in accordance with my instructions”.
Exhibit D1 is a similar letter dated 16th March 1985, and it reads as follows-
Further to my letter dated 16th February 1985 on the above mentioned matter, I am on further instructions to give the boundaries of the Somade family land for avoidance of doubt and for clarity sake. The Somade family land at Isakura has boundaries. – . My clients have no problems with their boundary people who are entitled to use their own family lands the way they like, neither do they want any confrontation with Ipoji as a Community. All that my clients are saying is that their family land cannot now be turned communal land after it had remained Somade family land from time immemorial and while the family members are still in effective and undisturbed possession of same up to date”.
Exhibit D2 is a reply to the Appellants’ Solicitor from “Aremu & Aremu, Legal Practitioners”, titled “Land at Isakura, Ipoji, Sagamu; Claim to by your Clients”; it is dated 21st March 1985 and reads as follows’
“… We have the instructions of His Highness, Oba Tijani Olulu, the Odogun of Ipoji, the Ipoji Township Princes/Princesses and Chiefs to say categorically that Sakura (or Isakura) Farmland does not belong to Somade or any family at all; it is the property of the Odogun as trustee for his people (Ipoji Town). Sakura was settled Odogun (for his people) when Ipoji Township moved Orile Ipoji to its present site. It is our further instruction that the claim of your clients is bogus, baseless and an attempt to indulge in some litigation in order to disrupt the peace and oneness of Ipoji. It will be in their interest not to engage themselves in a wild goose chase. Kindly give members of Somade Family and their henchmen the benefit of your seasoned advice. But if they refuse your advice and persist in being blindly adamant they are welcome to the fear-free forum of the arena of a law suit”.
Exhibit F is a letter addressed to “The Ipoji Land Committee” from the Somade Family; it is dated 26th October 1985 and reads as follows –
“We on behalf of Somade family hereby admitted that after several meetings with Ipoji Chiefs and some elders in Ipoji discussing about Sakura farmland (sic). And had fully explained to Somade family, and the Ipoji Land Committee has agreed with us to do our request or right that we are asking for (sic), after the Committee has agreed to give us our right on the Sakura farmland, we are agreed with the people of Ipoji and the Land Committee to be come one (sic) under the same umbrella. Therefore, on the face of this settlement made on the both side (sic), we hereby withdrawn all previous letters in between the two factions are cancelled (sic). Furthermore, after the acceptance of this our letter, we, the Somade family have some points or matter to be discussed with the Family Land Committee”. (Italics mine).
The above pieces of documentary evidence speak for itself. Obviously, the Appellants cannot in clear conscience claim that they own the land in dispute to the exclusion of the Respondents or anyone else. As I stated earlier, title to land presupposes exclusive right to the land – see Fagunwa V. Adibi (supra). At the end of the day, the lower Court may have failed to make the necessary findings, but there is no doubt that its conclusions were in order. Neither party was entitled to the Judgment of the Court and I so hold.
What is the right order to make in the circumstances? That is the next question. It is well settled that the consequential order a Court makes must flow from the circumstances of the decision of the Court; it is not open to a Court to make a consequential order that is at cross-purposes or contradictory to its decision. If that happens, the appellate Court will cut it down – see Chikere V. Okegbe (2000) 12 NWLR (pt. 681) 274 SC In this case, the lower Court held that both parties were not entitied to the Judgment of the Court, and contemplated non-suiting the action. However, after hearing counsel on the issue of non-suit, it opted to strike out the action instead. Non-suit is a decision against the Plaintiff because of his failure to show that he has a valid case, or inability to produce and procure enough evidentiary proof to warrant a Judgment in his favour. However, this procedure as a form of Judgment has now been abolished.
Nowadays, where a Court conceives that the proponent of a suit, otherwise the Plaintiff has failed to impress the Court by his failure to prove his case on satisfactory evidence, the action is always dismissed – See UBN Plc V. Dappa-Biriye (2000) 12 NWLR (pt. 682) 588 @ 592, Y.S.G. Motors Ltd. V. Okonkwo (2002) 16 NWLR (pt. 794) 536 & Eke V. Okwaranyia (2001) 12 NWLR (pt. 726) 181, where the Supreme Court held as follows-
“When a Plaintiff’s case has failed in toto, that is to say, he has not succeeded in discharging the burden on him going by the evidence; a retrial order is inappropriate and will not be made. To make such an order in such circumstances will amount to affording the Plaintiff a second chance, which he does not deserve, to prove what he failed to at first. The proper course to take in that situation, so long as failure to prove is not due to a technical hitch or some other cause justifying a non-suit” is to make an order dismissing the action”. (Italics mine).
In this case, the lower Court made a wrong order. Having concluded that “neither side is entitled to the Judgment of this Court as claimed”, it should have dismissed the claim and counterclaim filed by both parties.
In the final analysis, the appeal and cross-appeal are allowed in the sense that the decision of the lower Court striking out the case is set aside, and it is hereby replaced with an order dismissing both the Respondents’ claim and the counter-claim filed by the Appellants. Each party will bear their own costs.
Other Citations: (2006)LCN/1886(CA)
