Theophilus O. Jaiyeola (for Himself and on Behalf of All the Children of the Late Gbadamosi Adunola Jaiyeola) V. Olaojo Abioye (2002)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
The appellant, Theophilus Jaiyeola, was the plaintiff, while the respondent, Olaojo Abioye, was the defendant in this action, instituted at Ibadan High Court as suit No. I/501/85. The dispute that led to the institution of the action was over a large parcel of land, situate and being at Olodo village, Off Iwo Road, Ibadan. The plaintiff’s claim as set out in paragraph 18 of the further amended statement of claim is as follows:-
(1) N10,000 damages for trespass committed and still being committed by the defendant and or his agents and servants on the plaintiff’s land situate at Olodo village Off Iwo Road, Ibadan, as contained in the survey plan No. AT/Y. 1684 prepared by W.T. Adeniyi & Co., Licensed Surveyor.
(2) Perpetual injunction to restrain the defendant whether by himself, his servants or agents or otherwise howsoever from further entry on the said land.
Pleadings were filed and exchanged and the trial took place before Oyekan, J. sitting at Ibadan High Court in Oyo State. Five witnesses, including the plaintiff, testified in support of the plaintiff’s claim. The defendant and three other witnesses testified for the defence.
The plaintiff testified at the trial as PW2. His case was that the land in dispute originally belonged to Arulogun, his great-grandfather. Arulogun had four wives; one of them was Onibudo, who begat Jaiyeola and Olabode. Jaiyeola begat Gbadamosi, the plaintiff’s father and Archdeacon Samuel Jaiyeola. Olabode had no issue. The land in dispute formed part of a large parcel of land originally owned by Arulogun. It was the case of the plaintiff that on the death of Arulogun, his landed property was partitioned and that the land in dispute was the portion given to the plaintiff’s father. The plaintiff claimed that he inherited it from his father. The plaintiff told the court in the course of his evidence that the Arulogun’s land was partitioned when Oyagbirin, one of the grand-children of Arulogun, was the head of the Arulogun family. The plaintiff further claimed that the land in dispute was cultivated by Gbadamosi Jaiyeola during his life time. Since his death, the plaintiff took over the land and continued to use the land for farming purposes. The incidents that led to the institution of the present action took place in February, 1984, when the defendant entered the land harvested the plaintiff’s crops thereon. He was warned, but when he failed to heed the warning, the plaintiff had to institute the present action against him. The plaintiff gave a list of his crops on the land which he alleged that the defendant destroyed on the land. They included cocoa trees, kolanut trees, plantain and palm trees.
Zacheus Popoola Arulogun (PW4) who told the court, inter alia, that he was a member of Arulogun family, also confirmed that the land in dispute was the portion of Arulogun’s land given to Gbadamosi, when the land was partitioned. He however said, he did not know when the partition took place and he admitted under cross examination that, the defendant planted crops on the land. But he said that he (defendant) did so forcibly.
The case for the defence was that the defendant was also a descendant of Arulogun, who originally owned the land in dispute.
The said Arulogun had four wives. The first issue of Arulogun was Efunyanju (a female) born by Olayemi, one of the four wives of Arulogun. Efunyanju was the mother of the defendant’s father. Arulogun farmed on his entire landed properties while he was alive. When he died, his children continued to farm on portions of the land. The plaintiff belonged to Gbada Ajala and Oyagbirin line of Arulogun family. They sold the portion of Arulogun’s land being farmed by their line of the Arulogun family to Motor Parts Dealers. The portion now in dispute was the one being farmed by the defendant’s father and on which he continued to farm after the death of his father. The portion of Arulogun’s land now in dispute is said to have been given to Efunyanju by her father, Arulogun, while the man was alive. The grant was known to the other members of the family, including Archdeacon Samuel Jaiyeola (PW.5), the current head of the Arulogun family.
The plaintiff’s claim was said to have been aimed at taking the land in dispute from the defendant, because he is an illiterate farmer, while the plaintiff and PW.4 are well educated people, who did not live in the village like the defendant. The two people were respectively retired teacher and minister of religion, who lived all their working lives in the city. When the dispute started, the matter came before Tiamiyu Eniola Adio (DW3), a very elderly man and the Baale (head chief) of Olodo village of which the land in dispute was a part. The witness told the court that the dispute was reported to him as the head chief of the area. He said he knew the land in dispute and all the parties in the dispute. He also said he was one of the boundarymen of the land in dispute because his farm shared boundary with the land in dispute. He also said he knew all the people that had been fanning on the land. Opadare, the defendant’s father, was farming on the land while he was alive. The defendant continued to farm on it after the death of this father. He confirmed that the land in dispute originally belonged to Arulogun and that Opadare and the defendant were members of Arulogun’s family.
The witness further told the court that when the dispute was reported to him, he summoned a meeting of his chiefs to deliberate on the matter. He said that it was the unanimous decision of himself and all his other chiefs that deliberated on the matter that the land in dispute belonged to Opadare, the defendant’s father, and that the economic crops on the land were planted by Opadare. The plaintiff instituted the present action because he was dissatisfied with the decision handed down by the witness and the chiefs.
Archdeacon Samuel Jaiyeola (PW5) was said to be present when DW3 and his chiefs deliberated over the matter. DW3 said he (PW5) did not accept the decision of the chiefs, because he conspired with the plaintiff to snatch the land from the defendant because the defendant was an illiterate while the plaintiff and PW5 and others on their side were enlightened persons.
The learned trial Judge in his reserved judgment delivered on 30/9/88, found, inter alia, that it was not correct, as claimed by the plaintiff, that Arulogun’s land was partitioned and that the defendant was in fact the person farming on the land in dispute since the death of his father, Opadare. He accordingly held that the plaintiff failed to prove his claim. The action was therefore dismissed with N3,500 costs in favour of the defendant.
The plaintiff was dissatisfied with the verdict of the court. He has therefore appealed to this court against it. Three original grounds of appeal were filed against the decision. With leave of this court, 8 additional grounds were added to the three original grounds of appeal.
The parties filed their respective brief of argument in this court.
The following six issues were formulated as arising for determination in the appeal:
(i) Whether or not the evidence led by the plaintiff on partition was in accordance with his pleadings.
(ii) Whether on the materials before the court partition of Arulogun family land was established by the plaintiff.
(iii) Whether the defendant established the alleged grant by Arulogun of the land in dispute to Efunyanju the paternal grandmother of the defendant.
(iv) Whether in view of the evidence before the trial court the decision of the learned trial Judge was justified.
(v) Was the trial court right in refusing the claim for damages and awarding N3,500.00 cost against the plaintiff.
(vi) In the event that the appeal court holds that the learned trial Judge was right in his consideration of the case, whether an order of dismissal of the plaintiff’s case was justified in the circumstances.
The respondent, on the other hand, formulated the following two issues as arising for determination in the appeal;
- Whether issues can be formulated devoid of grounds of appeal.
- Whether court can grant to the plaintiff claims which he failed to prove.
The respondent raised a preliminary objection to some of the issues canvassed in the appellant’s brief. The preliminary objection is premised on the ground that the appellant argued only the 3rd ground of appeal in the original notice of appeal and abandoned all the other grounds. We are therefore, urged to strike out the other grounds of appeal contained in the original notice and grounds of appeal since they are deemed to have been abandoned. Similarly, arguments based on the amended grounds of appeal are also said to be incompetent and should be discountenanced because no leave of this court was sought and obtained for the amended grounds of appeal to be canvassed. The decisions in Tukur v. Governor of Taraba State (1997) 6 NWLR (Pt.510) 549, (1997) 6 SCNJ 81; Madumere v. Okafor (1996) 4 NWLR (Pt.445) 637, (1996) 4 SCNJ 72; and Okelola v. Boyle (1998) 2 NWLR (Pt.539) 533, (1998) 1 SCNJ 63 were cited in support of the above submissions. I have decided to dispose of the preliminary objection before going into the merit of the case. This is because by doing so, one will know exactly what is left to be considered in the appellant’s case as presented in his brief. The main contention of the respondent was that appellant never sought and obtained leave of this court before canvassing the eight additional grounds of appeal canvassed in the appellant’s brief along with the 3rd ground of the original ground of appeal. This contention is, however, not correct in that the record in this court shows that the appellant had on 23/11/99 filed a motion dated 17/11/99 in which he prayed the court in the 1st two prayers of the motion for the following orders:
(i) Granting leave to the appellant/applicant to file and argue additional grounds of appeal.
(ii) Granting the appellant/applicant leave to amend the notice of appeal by incorporating additional grounds of appeal as contained in exhibit A attached to the affidavit in support of this application.
The motion was taken and granted by this court on 16/5/2000.
The 8 additional grounds now canvassed in the appellant’s brief are those attached to the affidavit in support of the application as exhibit A. There is therefore, no merit in the preliminary objection. However, the grounds of appeal not covered by the issues formulated are deemed to have been abandoned. I will now therefore proceed to consider the appeal on its merit.
It is submitted in the appellant’s first issue that the learned trial Judge was wrong in holding that contrary to pleading that Arulogun’s land was partitioned among his children, the plaintiff’s evidence was to the effect that partition was among Arulogun’s grand-children and as such the plaintiff had set up a case different from that pleaded.
That finding of fact is said to be contrary to the evidence led at the trial. The evidence of PW4 is said to show convincingly that partition was to the children along branch lines. Such partition to the branches is said to be a partition to the children since each branch is composed of children on the basis of the branches of the family. It is further argued that even if the plaintiff had testified that partition was to the grand-children, such evidence could still be accommodated within the pleading in paragraph 5 of the further amended statement of claim that partition was to the children because the word children is said to be wide enough to include descendants according to dictionary definition.
The point raised in the appellant’s second issue is in respect of the learned trial Judge’s statement to the effect that the plaintiff failed to lead evidence of irreconcilable dispute that could warrant partition as decided in Lewis v. Bankole (1908) 1 NLR 81, at 97. It is submitted that that view was a misdirection and not a requirement of the law.
It is argued that the evidence led before the court was enough to support partition and as such the learned trial Judge was wrong to have held otherwise.
It is argued in the appellant’s third issue that since the averment of the defendant that Efunyanju was an issue of Arulogun was denied by the plaintiff, this therefore raised a question for the court to resolve.
But it is submitted that the court failed to resolve that issue. The only evidence given by the defence in support of the averment that Arulogun made the grant of the land in dispute to Efunyanju was given only by the defendant. This is said to be insufficient because it is argued that in order to prove such grant inter vivos, there must be evidence from the alleged grantor or a member of his family who knew about the grant. The decision in City Property Development Ltd. v. Attorney General of Lagos State (1976) 1 SC 71 at 99 was cited in support of this submission.
The point raised in the appellant’s fourth issue is in respect of the claim by the defence that the grant to Efunyanju by Arulogun was made while Arulogun was still alive. It is argued that if there was such a grant, there would be nothing for the family to partition after Arulogun’s death. The onus was therefore said to be on the defendant to prove the grant alleged by him. The learned trial Judge was said to be in error in not taking that point into consideration in arriving at his conclusion in the matter.
In the appellant’s sixth issue, the question raised is that the learned trial Judge was wrong in dismissing the plaintiff’s claim. It is submitted that the proper order the court ought to make should be one of non-suit. This is said to be because the learned trial Judge having rejected the plaintiff’s case that the land was partitioned and also holding that Arulogun family land remained intact, the plaintiff, being a member of the Arulogun family, dismissing the plaintiff’s claim would amount to shutting the plaintiff from the family land.
On the other hand, it is argued that non-suiting would not have any adverse effect on either patty.
Finally, the question raised in the appellant’s fifth issue is that the N3,500 costs awarded by the learned trial Judge was unjustifiable, punitive and not compensatory. It is therefore argued that the learned trial Judge failed to take into consideration all the relevant facts placed before him in the matter before awarding the excessive costs.
In reply, it submitted in the respondent’s second issue under which all the issues raised in the appellant’s brief were treated, that the learned trial Judge was quite right in the conclusion he reached in the case. It is argued that mere assertion of partition of Arulogun’s land was not enough proof thereof. The onus was on the plaintiff to show
(1) who called for the partition;
(2) who were the people present during the partition;
(3) who actually did the partition;
(4) among whom was the land partitioned; and
(5) the reason for the partition.
The plaintiff failed to meet the above conditions. Apart from the fact that the plaintiff failed to meet any of the above conditions, and the fact that the plaintiff also pleaded in paragraph 5 of his further amended statement of claim that the family left a portion of the Arulogun land for general use, were sufficient evidence that no partition took place. What took place could at best be allotment of occupational rights to specified members of the family. We are therefore, urged to hold that the plaintiff failed to prove partition. On the failure of the learned trial Judge to make an order of non-suit, it is submitted in reply that the learned Judge dismissed the plaintiff’s claim because the claim was on behalf of Gbadamosi Adunola Jaiyeola’s children and not on behalf of Arulogun family.
The claim could therefore not succeed since the plaintiff failed to prove pm1ition. The question of entering a verdict of non-suit could therefore not arise.
Finally on the costs awarded, it is submitted that since the plaintiff’s action was dismissed, the defendant was entitled to costs. It is argued that the defendant had asked for N4,438 as costs out of which the cost of producing the survey plan, exhibit B, was N3,000 and the filing fee was N38:50. There were 27 appearances in all. It is therefore submitted that the N3,500 costs awarded was in no way excessive as to warrant this court tampering with it.
The appellant’s complaints against the judgment come under three categories – viz:
- Whether the plaintiff led sufficient evidence in support of his claim;
- Whether the court ought to have non-suited the plaintiff’s claim; and
- Whether the costs awarded was excessive.
As already shown above, the plaintiff instituted the action for himself and on behalf of all the children of late Gbadamosi Adunola Jaiyeola. Gbadamosi Adunola Jaiyeola line of Arulogun family was one of the four lines of the late Arulogun family as represented by each of the man’s four wives. The action was therefore not instituted for and on behalf of the entire Arulogun family.
The plaintiff’s action was premised on the contention that Arulogun’s landed property was partitioned after the man’s death and that the land in dispute was part of the Gbadamosi Adunola Jaiyeola’s line of the Arulogun family. The law is settled that the partition of family land with the consent of all members of the family confers upon each member an absolute right to his partitioned portion.Conveyance of such title is therefore absolute and with no reversion left in the family. See Balogun v. Balogun (1943) 9 WACA 78. Similarly, the position of the law is that all joint owners of family property held under customary law must join in the voluntary partition of such property. It follows therefore that, any deed creating partition if not so executed is not voidable but void: see Onasanya v. Shiwoniku (1960) WNLR 166.
It is therefore not enough for a party claiming that family land had been partitioned to merely make such an assertion. He needs to plead and lead credible evidence in proof of certain very salient facts which would go to establish that there was in fact a partition. Such facts which need to be proved include the people who called for the partition; those who were present when the partition took place; who actually did the partition for the family; among whom was the land partitioned; and why the partition took place. Where therefore the plaintiff failed to lead sufficient evidence of partition as required by law and set out hereof, his case would be dismissed:see Coker, G.B.A., Family property among the Yorubas, 2nd ed., page 113 & 144; and Olawoye, Title to Land ill Nigeria, page 35.
There is a clear distinction between a family land partitioned and one allotted for use by members of the family. Thus, where there is partition, there will be no room for undistributed portion; whereas in allocation, the family could reserve or leave some portions unallotted to any member of the family. Where such a situation occurs, the court will hold that there was yet no partition; see Majekodunmi v. Tijani (1932) 11 NLR 74; and George v. Fajore (1939) 15 NLR 1.
The evidence led by the plaintiff in the instant case, as already set out above, failed to give the required detailed evidence required for proving the existence of partition of the family land. All that the plaintiff and one of his witnesses told the court was that Arulogun’s landed property was partitioned after the death of the man. No details of when, or why and who did the partition were given. Similarly, details of those who benefited from the partition were also not given. The learned trial Judge was therefore, right in holding that the plaintiff failed to prove that Arulogun’s land was partitioned.
On the other hand, the case for the defence was that the land in dispute was granted to his paternal grand-mother, Efunyanju, who was the first issue of Arulogun and that the grant inter vivos was made while Arulogun was alive. After the grant, Efunyanju cultivated the land until she died. After her death, the defendant’s father and son of Efunyanju took over the land and continued to farm thereon. The defendant took over on his father’s death. It was also in evidence that the defendant was in fact a farmer, who was resident on the land and that all the economic crops on the land were planted by the defendant’s father, while the other crops were planted by the defendant himself. It is necessary also to mention that there was no counterclaim for declaration or any other relief. It follows therefore that, all that the defendant needed to do in that situation was to lead sufficient evidence in defence of the action filed against him. I believe he did that creditably well and as such the conclusion reached by the learned trial Judge was quite appropriate and in order.
The next question to be resolved is whether the plaintiff was entitled to have his claim non-suited. The law is settled that an order for non-suit could only be made where neither of the parties is entitled to judgment. Such a situation could arise, for example, where in a case, a claimant only proves a probable case, not one proved by preponderance of evidence in a trial where the evidence led in proof of his case is not preponderant so as to entitle him to judgment in his favour and dismissing his case would result in great injustice. The order will however not be applicable where the plaintiff failed to lead appropriate evidence required to prove his claim. In such a situation the appropriate order to be made is that dismissing his claim: see Balogun v. U.S.A. Ltd. (1992) 6 NWLR (Pt. 247) 336 at 351; and Dejonwo v. Dejonwo (1993) 7 NWLR (Pt. 306) 483 at 508. The effect of an order of non-suit on a plaintiff is that where a case is non-suited, the unsuccessful plaintiff’s right of action is still preserved as the interest of justice in such a situation demands that such a plaintiff should not forever be shut out from re-presenting his case. In other words, he is free to re-commence the same action after the order for non-suit had been made. See Ejiofor v. Onyekwe (1972) 1 All NLR (Pt. 2) 527, (1972) 12 SC 171; and Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.
The facts of the instant case, however, show that the plaintiff instituted his action on behalf of one of the branches of Arulogun family and based his claim on the fact that the land had been partitioned. But he failed to prove that the land had been partitioned. He was therefore not entitled to have his claim non-suited. The order of dismissal of his claim made by the learned trial Judge was therefore very appropriate.
Finally, the remaining issue to be resolved is whether the N3,500 costs awarded is excessive and punitive. It is necessary to mention in this respect that the learned trial Judge heard the parties on costs before he made his award in the case. The proceedings in this respect as recorded on page 110 of the record is inter alia, as follows:
“Mr. Ogundeji: I ask for N4,538.50 out of which the defendant’s out of pocket expenses amount to N3,038.50. There are 27 appearances in this case… The making of exhibit B cost N3,000. The filing of process by the defendant cost N38.50.”
Based On the above disclosures, the learned trial Judge fixed the costs at N3,500.
The position of the law is that it is an established principle that costs follow the events in litigation and as such, a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement: See Anyaegbunam v. Osaka (1993) 5 NWLR (Pt. 294) 449; Adenaiya v. Governor-in-Council (1962) 1 SCNLR 442; Obayagbona v. Obazee (1972) 5 SC 247; and Douglas v. Peterside (1994) 3 NWLR (Pt. 330) 37. The law is, however also settled that costs are not meant to be a bonus to a successful party. It is also not meant to be as punitive measures. In making the award, the court must exercise the discretion conferred on it judiciously and judicially. Where there are glaring cases that the lower court failed to comply with the afore-mentioned principle in the exercise of its discretion, the appellate court will be entitled to tamper with the award wrongly made. Unless such a breach is clearly patent from the record, it will be improper for the appellate court to merely dabble into such a situation by substituting its own discretion for that of the trial court: see Rewane v. Okotie-Eboh (1960) SCNLR 461; Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184; HACO Ltd. v. Brown (1973) 3 SC 149: and Union Bank Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127. As the main aim of awarding cost is to relieve the successful party of his costs of the litigation he was unjustly put into by the unsuccessful party, the facts of each case must be taken into consideration in deciding whether the costs awarded is reasonable.
Thus in the instant case, the facts show that the out of pocket expenses alone, that is, the costs of payments made for surveying the land in dispute for the purpose of the litigation and the amounts paid for filing documents were alone over N3,000. Awarding a total sum of N3,500 can therefore not be said to be excessive.
In the result, there is totally no merit in the appeal and it is accordingly dismissed with N10,000 costs in favour of the respondent.
Other Citations: 2002)LCN/1203(CA)
