Wahab Alamu Sapo & Anor V Alhaja Bintu Sunmonu (2010)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C.

This is an appeal against the Judgment of the Court of Appeal, Ibadan Division (hereinafter called “the court below”) delivered on 25th January, 2001 allowing the appeal of the Respondent and setting aside the judgment of the High Court of Osun State sitting at Osogbo Judicial Division (stated in the Appellant’s Brief as “decision”) per Falade, J. delivered on 16th May, 1995.

Dissatisfied with the said Judgment, the Appellants have appealed to this Court on eleven (11) grounds of appeal. They formulated four (4) issues for determination, namely,

“3.01 Whether the death of the only Respondent to the appeal before the lower court on 23/10/1999 and failure to substitute a living person in his place did not deprive the lower court the jurisdiction to entertain the appeal pending before it and thereby render the judgment delivered on 25/1/01 a nullity.

Ground 1.

3.02 Whether the action filed and the appeal prosecuted by the Respondent was properly constituted having regard to the fact that the Defendant’s family was not made a party to the suit and the appeal.

Ground 3.

3.03 Whether the court below made a correct approach to the evidence led by the parties before the trial court. Grounds 4 and 6.

3.04 Whether having regard to the pleadings and the evidence led, the judgment of the Court of Appeal made in favour of the Respondent is not against the weight of evidence as to who proved a better title to the land in dispute.

Grounds 5, 7, 8, 9, 10 and 11”.

From the above issues, I note and in fact, it is obvious that no issue has been raised, formulated or distilled from Ground 2 of the Grounds of Appeal. The consequence is now firmly settled. A ground of appeal in respect of which no issue has been formulated, is deemed to have been abandoned and such a ground, must be struck out. See the cases of Onafide v. Olaviwola (1990) 7 NWLR (Pt.161) 130; (1990) 11 SCNJ 10; Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; (1992) 7 SCNJ 355-; Adomolaran v. Kupolovi (1994) 2 NWLR (Pt.325) 221 CA and Ngilari v. Mothercat Ltd. (1995) 8 NWLR (Pt. 31 1) 377 C.A. just to mention but a few. Ground 2, is accordingly struck out as urged by the Respondent.

On the part of the Respondent, three (3) issues have been formulated for determination, namely,

“1. Whether the issue of the alleged death of the Respondent was before the Court of Appeal and whether the issue is competent before this Court

2. Whether the non joinder of the Defendant/Respondent’s family was fatal to the Plaintiffs’ case
3. Whether the Court of Appeal was justified to have re-evaluated the evidence before it and came to the conclusion it did having regard to the evidence on record”

It is submitted that issue 1 above covers the first ground of appeal while Issues 2 and 3 cover the other grounds of appeal except ground 2 that has no issue raised against it and in respect of which the Court has been urged to strike it out.

The facts of this case leading to the instant appeal briefly stated, are that the Respondent who was the Plaintiff in the trial court, claimed personally against the defendant – Alhaji Bello Ajani Sapo, a declaration that the plaintiff is entitled to a Statutory Right of Occupancy over or in respect of the land that was the subject-matter of dispute. She also claimed N10,000.00 (ten thousand naira) as damages for trespass and for perpetual injunction. Pleadings were filed and exchanged. At the trial, the Respondent testified and called six witnesses. The defendant also testified and called three witnesses. After addresses, the learned trial Judge, dismissed the suit or claims of the Respondent who appealed successfully, to the court below that allowed the appeal and set aside the judgment of the trial court, hence the instant appeal.

When this appeal came up for hearing on 16th February, 2010, the leading learned counsel for the Appellants – Olawoye, Esqr, adopted their Brief. He urged the Court to allow the appeal. There is/was evidence of service of the Hearing Notice on the Respondent and/or Counsel. Judgment was reserved till to-day pursuant to Order 6 Rule 8(6) of the Rules of this Court.

Although, I was minded to treat or deal with Issues 3.03 and 3.04 of the Appellants and Issue 3 of the Respondent as the material issues for determination, but since Issue 3.01 of the Appellants and Issue 1 of the Respondent, touches on the competence or jurisdiction of the court below to in fact deliver its Judgment, I will deal with the same. The Appellants assert that the defendant/Respondent, died on 23rd October, 1999 and that there was no substitution as at the date of the Judgment of the court below. That the implication is that the orders made in the Judgment, ipso facto, are null and void. That this is because, the Judgment, was given against a non-existing party as the only Respondent to the appeal, had died before the appeal “was argued”. That the position would be the same even if the appeal had been prosecuted against the deceased defendant in a representative capacity as according to the learned counsel, a dead person can neither sue nor be sued either personally or in a representative capacity as according to him, the personality of a human being is extinguished by his death. He has cited and relied on the cases of Alhaji Abdulsalam & anor. v. Alhaji Salawu (2002) 13 NWLR (Pt. 785) 505. 522 – per Uwais, CJN (it is also reported in (2002) 6 SCNJ 388); Osagunna v. The Military Governor of Ekiti State & ors.: In Re Ayoola Adeosun (2001) 8 NWLR (Pt. 714) 200 @ 221 (it is also reported in (2001) 4 SCNJ 30); Ajakaive v. Ideahi (1994) 8 NWLR (Pt.364) 504 (ci) 533 C.A. and Bintumi v. Fantami (1998) 13 NWLR (Pt.581) 264 @ 271 – 272 C.A.

It is submitted in the Respondent’s Brief that the issue of the death of the Respondent, is hollow and “much furry without wind”. That the issue never arose before the court below. On the competence of the issue, it is submitted that although issue of jurisdiction can be raised “at any time” that the rule must not be oversimplified ad absurdum to accommodate an issue of fact which would require this Court to examine further evidence and decide on the’ admissibility and probative value of documents and thus assume an original jurisdiction to determine basic facts on which the Court of Appeal had made no pronouncement and that this Court, has no such original jurisdiction of a court of trial. Whatever the above means, on the facts, it is submitted that the question is when did the Respondent in the court below die is a question of fact that according to the Appellant (sic), the death occurred while the suit was still before the court below. But that the fact was never raised before the court below. The observation of Uwaifo, JSC in the case of Ibori v. Agbi (2004) FWLR (Pt.202) 1799 @ 1855 is reproduced thus:

“The Supreme Court cannot function outside it’s normal constitutional role as an appellate court which is to consider whether issues raised in the trial court have been completely decided there and therefore properly examined on appeal by Court of Appeal”.

(sic).

Reliance is also placed on the case of Joy v. Dom (2001) FWLR (Pt.82) (sic) (it is part 62) 2026. I note that it is a Judgment on 19th July, 1999 and it is also reported in (1999) 7 SCNJ 27) – per Belgore, JSC (as he then was later CJN) as to when new issue or issues can be raised. I agree with the submission in the Appellants’ Reply Brief in paragraph 1.02 to the effect that the issue is on jurisdiction or competence of the court below and being a point of law, it can be raised at any stage and even by this Court but I will add that provided, leave of either the lower or this Court, is sought and granted. See the cases of Ezekude v. Odogwu & ors. (2002) 13 NWLR (Pt. 784) 366; (2002) 7 SCNJ 280; Obiakor & anor. v. The State (2002) 10 NWLR (Pt. 776) 612 @ 626; (2002) 6 SCNJ 193 and Joy v. Dom (supra). This Court deprecated also the raising of the point of law in this Court without leave in the case of Obiode & ors. v. Orewere & ors. (1982) 1 ANLR (Pt. 12) @ 16 – per Uwais, JSC. (as he then was later CJN). The rationale for this rule, is that an Appellate Court, deals with or hears complaints and grievances against the decisions of the lower court and thus has the duty, to correct the error or errors of the lower court. See the case of Agu v. Ikewibe (1991) 13 NWLR (Pt.180) 385 (2V, 403 – 407; (1991) 4 SCNJ 56. However, I agree with the Respondent’s learned counsel firstly, that from the Records, physical appearance of the learned counsel for the parties, are/were recorded by the court below. At page 116, on 16th October, 1997., the following appear inter alia:

Mr. M. O. Agboola for the Applicant (i.e. Plaintiff/Appellant).

Mr. A. Areoye for the Respondent, (i.e. defendant/Respondent) .

The application for extension of time to file the Appellant’s Brief of Argument and leave to amend the Applicant’s Notice of Appeal and a deeming order, were granted with costs ofN500.00 in favour of the Respondent.

Secondly, at page 119 thereof, on 31st October, 2000; the date for the hearing of the appeal, the Appellant (i.e. the Plaintiff) was recorded as being present. Mr. M. O. Agboola appeared for the Appellant while B.A. Akande (holding Mr. A. Areoye’s Brief) appeared for the Respondent (i.e. the alleged “dead” Respondent). Both learned counsel for the parties, adopted their respective Brief. While Mr. Agboola urged the court to allow the appeal, Mr. Akande, urged the court to dismiss the appeal. The court below thereafter, adjourned the appeal/case for Judgment to 7th December, 2000. The proceedings of 31 st October, 2000 was signed by Akintan, JCA (as he then was) in the Panel that included Tabai and Adekeye, JJCA.

At page 119A, the proceedings on 25th January, 2001 – Coram: Onalaja, Adamu and Adekeye JJCA, the appearances of the Appellant and counsel for the parties, are/were recorded and appear as follows:

“Appellant is present in Court.

Biodun Olaide for the Appellant.

Chief Oladiti Akande for Mr. A. Areoye for the Respondent”.

The Judgment was read and delivered by Onalaja JCA. In other words, although the Respondent was duly represented by his counsel on the two occasions, there was no mention to the court below, of the alleged “death” of the defendant/Respondent on 23rd October, 1999, to the court below.

Thirdly, at pages 139 – 140 of the Records, on 25th April, 2001, a motion dated 23rd April, 2001 for leave to appeal against the said Judgment of the court below and for an order for stay of execution of the said Judgment, was filed on behalf of the alleged dead Respondent. It was/is signed by one Lekan Ojo, Esq, in the Chambers of Chief Afe Babalola, SAN & Co. The ,affidavit in support of the application was sworn to by one Phillip Ojo – a Litigation Officer in the said Chambers. In paragraphs 2,6,7 and 8 thereof, he swore as follows:

“2. I am duly authorised by the Appellant/Applicant i.e. Alhaji Bello Ajani Sapo (the alleged dead Respondent) to swear to this affidavit.

6. That the Applicant is dissatisfied with the Judgment of this Court delivered on 25/01/2001 and is desirous of appealing against it to the Supreme Court.
7. That I know that the Applicant decided to change his counsel for the purpose of prosecuting his proposed appeal against the said judgment.
8. That I know as a fact that the applicant briefed our chambers to prosecute his appeal against the judgment of this Court in early March, 2001”.

I note that at page 144 of the Records, in the Notice of Appeal filed on the said 3rd April, 2001, the Appellant is stated as Alhaji Bello Ajani Sapo (the alleged dead Respondent). The Notice of Appeal at page 148 thereof also dated 23rd April, 2001, is signed by Lekan Ojo, Esq, as Appellant’s Counsel. It is now settled that the contents of Record of proceedings, are binding both on the court and the parties. See the case of Chief Fubara & ors. v. Chief Minimah & ors. (2003) 5 SCNJ 142 @ 168. Order 3 Rule 30(1) of the Court of Appeal Rules, 2002 now Order 15(1) Court of Appeal Rules (with Practice Direction) (2007), places the duty or burden of informing the Court of the death of a party, on the counsel representing the party. For the avoidance of doubt, it provides as follows:

“It shall be the duty of Counsel representing a party to an appeal to give immediate notice of the death of that party to the Registrar of the court below or to the Registrar of the Court (as the case may require) and to all other parties affected by the appeal as soon as he becomes aware of the fact”.

The above provision is clear and unambiguous. I see no such notice in the Records. In fact, Rule (2) of the above order, provides as follows:

“If/where it is necessary to add or substitute a new party for the deceased, an application shall, subject to the provisions of Order 1 Rule 21, be made in that behalf to court below or to the court, either by any existing party to the appeal or by any person who wishes to be added or substituted”.

The above is also clear and unambiguous. If it is true (not conceded) that the Respondent, died since 23rd October, 1999, I also have not seen any such application for substitution in the court below either by the Appellants or any other member of their family. Since the dispute is in respect of land and from the said pleadings in the defendant/Respondent’s Statement of Defence, the Judgment of the court below, subsists and is binding on the Appellants.

The learned counsel for the Appellants with respect, at page 2 paragraphs 2.01 and 2.02, surprisingly and with respect, erroneously, submitted as follows:

“2.01 that the parties in this case cannot by consent or acquiescence or failure to inform the lower court of the death of the sole Respondent before the date of judgment confer jurisdiction on the court. In other words, they cannot by their failure to inform the lower court of the death of the Respondent before the date of judgment nullify the effect of the principle of law which made it mandatory that both parties to a case must be living persons at the date when judgment is delivered. See Yassim vs. Barclays Bank, C.D.O. (1968) 1 ANLR 171 at 178; Abdulsalam vs. Salawa (2002) 13 NWLR (Pt.785) 522 paragraphs E – R.”.

2.02 We further submit that the issue of the death of the Respondent was not raised at the lower court before delivering its judgment is a nonstarter since it is a jurisdictional point of law, it can be dealt with by this Court by virtue of Sec. 22 of the Supreme Court Act. See Kimship Ltd. v. Exquisite Ind. Nig. Ltd. (2003) 1 S. C. (Pt.II) 94 @ 114″.

See also the further submission in paragraph 2.03 which shows with respect, a gross misconception by the learned counsel of the mandatory provision of Order 3 Rule 30 (1) of the Court of Appeal Rules 2002 now Order 15 Rule 1 of Court of Appeal Rules 2007.

I note that at page 2 paragraph 2.03 of the Appellants’ Brief, it is submitted inter alia:

“It is the law that since proceedings conducted without jurisdiction are null and void as per Odutola vs. Kayode (1994) 2 NWLR (Pt.324) 1, no act of waiver or act that may be seen to have that effect, can confer jurisdiction to validate such proceedings, no matter how reprehensible and/or condemnable the conduct of the Appellants that omitted to inform the lower court of the death of the Respondent (which is regrettable) may be viewed by this Court.

See: Ishola vs. Ajiboye (1994) 6 NWLR (Pt.352) 506.

The above cases were cited with approval by this Court in FRN vs. Ifeawu (sic) (meaning Ifegwu) (2003) 5 S. C. 252 and 299”.

[the underlining mine]

In other words or in effect, the Appellants and their learned counsel, now concede, that the court below, was not informed by them, of the purported death of the Respondent at any time and even on the date the Judgment of that court was delivered. So, I or one may ask, why all the unnecessary fuss which in the Respondents’ Brief is stated to be “with pontifical certainty and exactitude” and therefore, submitted that “the issue of the death of the Respondent, is hollow and much fury without wind.” If the Appellants in spite of the mandatory provision in the said Order 3(1) of the Court of Appeal Rules 2002, did not bring to the notice or even orally, inform the court below of the purported death of the Respondent as far back as 31st October, 1999 up to and including the 25th January, 2001 when its Judgment was delivered, how can or could the court below, be accused of delivering a Judgment that is tagged by the Appellants as “null and void” I or one may again ask. The whole thing in my respectful view, is absurd to the extreme. Any wonder, the learned counsel for the Respondent, described the issue as academic to say the least. Let me stop here.

From the foregoing, it is amazing to me that notwithstanding the above observations, this issue has surfaced in this appeal. With respect, it is a pity, unfortunate and bogus to say the least. However, since the issue is raised without leave, it is incompetent and it is accordingly, struck out.

Issue 2 of the Parties

I note from the Records, in the “Statement of Defence with Plan”, in paragraphs 1, 2 and 4 thereof, it is averred as follows:

“1. The Defendant defends this suit on behalf or himself and on behalf of his family – Sapo family

2. The defendant defends this in a representative capacity – that he represents Sapo family of which he is the head.
3. The defendant avers that the land in dispute and all the land surrounding it, front and back, left. And right belong to Sapo family including himself and his family.

See also paragraphs 8, 13, 14, 15, 16, 18, 20, 22, 26, 38, 40, 42 and 47 which talk of or state about the said family in respect of the subject matter of the dispute.

In the Appellants’ Reply Brief in paragraph 2.06, it is stated that the Respondent “strenuously” objected to the defendant, defending the suit in a representative capacity and pleaded in paragraph 1 of her Reply to the Statement of Defence as follows:

“In reply to paragraphs 1 and 2 of the Defendant’s Statement of defence, the Plaintiff says that she will raise Preliminary Objection to the capacity in which the Defendant seeks to defend at the trial of the suit”.

But if I or one may ask, did she afterwards object She never did and in any case, her case or stance, is that it was the defendant/Respondent who she saw committing the act of trespass she described in her pleadings and evidence. It was only an intention. In any case, the defendant pleaded at paragraphs 49 and 50 of his Statement of defence as follows:

“49. The plaintiff and her family are relatives (sic) are not related to Sapo family or to the ancestor of the defendant.

50. The defendant says that he has been farming personally on the land in dispute and the land surrounding it on all sides over 65 years ago without any challenge from anybody until recently by the plaintiff”.

However, the law is settled that a head of a family, can take action to protect family property or defend an action in respect of family property, even without the prior authority of other members of the family. So also, any member of a family, may take steps, to protect or defend family property or his own interest in it. See the cases of Sogunle v. Okerele & ors. (1967) NMLR 58, 60; Animashawun v. Osuma & 2ors. (1972) 4 SC. 200 @ 214; (1972) 4 SC. (Reprint) 180; Njoku & ors. v. Eme & 4ors. (1973) 5 S.C. 293; (1973) 5 SC. (Reprint) 211; Coker v. Oguntola & ors. (1985) 1 ANLR 278; Ugwu & anor. v. Agbo & 5 ors: (1977) 10 Se. 27 @ 40; (1977) 10 S.C. (Reprint) 18; Melifonwu & ors. v. Egbuji & ors. (1982) 9 Se. 145 @ 159; (1982) 9 SC. (Reprint) 73; and Alhaji Gegele v. Alhaji Lavinka & 6 ors. (1993) 3 SCNJ 39 @ 45; (1993) 4 KLR 51 just to mention but a few. I have already in this Judgment, reproduced the pleading of the Respondent in paragraph 2 of his Statement of Defence.

Secondly, failure by a Plaintiff or party to obtain leave to sue in a representative capacity, does not vitiate the validity of the action. See the cases of Anabaraonye & 3 ors. v. Nwakaike (1997) 1 NWLR (Pt.482) 374 @, 382; (1997) 1 SCNJ 161 and Chief Okapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587.

Thirdly, a Court including an Appellate Court, can make the order of representation, when once the pleadings and evidence, establish conclusively, a representative capacity and the case has been fought throughout, in that capacity even if an amendment to reflect that capacity, had not been applied for or obtained. It will be otherwise, if the case is not made out or defended, in a representative capacity. See the case of Ajomogun & 5 Ors. (1992) 6 NWLR (Pt.246) 156; (1992) 7 SCNJ (Pt.1) 79 @ 114-115; There had never been any unqualified rule of practice that forbade the making of a declaration, even when some of the persons interested in the subject-matter, were not before the court. Judgment will be binding on the family or Community, where a case is brought or defended in a representative capacity. See the cases of Ibeneweka & ors. v. Egbuna & anor. (1964) 1 WLR 219; Sowemimo v. Alhaji Somisi & ors. (1982) 1 ANLR (Pt.1 49; Dokubo & anor. v. Chief Bob Manuel & ors. (1967) 1 ANLR. 113; Mba Nta & ors. v. Anigbo & ors. (1972) 5 S.C 156 @ 174 – 175; (1972) 1 ANLR (Pt.2) 74; Mba Orie & anor. v. Okpan Ogba & anor. (1976) 10 ,S.C. 123 and Taiwo Ayeni & ors. v. Sowemimo (1982) 5 S.C. 60 @ 90 – 92 – all the above cases, are also cited or referred to in the case of Oba Oseni & 14 ors. v. Dawodu & 20rs. (1994) 4 NWLR (Pt.339) 390 @ 405 – 406; (1994) 4 SCNJ (Pt.11) 197.

It need to be borne in mind always and this is also settled that no cause or matter, shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See the cases of Chief Onwuka Kalu v. Chief Odili -In Re: Chief Nwoja & 2 ors. (1992) SCNJ (Pt.1) 76 @ 115; Osunrinde & 70rs. v. Aiamogun & 50rs. (1992) 6 NWLR (Pt.246) 156 @ 183 – 184; (1992) 7 SCNJ (Pt.1) 79 (supra); Sheehan v. Great Eastern Railway Co. (1880) 16 Ch. 55 @ 64. It is the undisputed right of a plaintiff, to choose the person or persons against whom he wishes to proceed against.

In the Respondent’s Brief at page 10, the case of Alhaja R. Ayorinde & 4 Ors. v. Alhaja Oni A. (2000) FWLR (Pt.3) 448 @ 464 – per Karibi-Whyte, JSC is cited and relied on (it is also reported in (2000) 2 SCNJ 1.) where it is stated inter alia, as follows:

“It is a correct proposition of law that when an action is properly constituted with a Plaintiff with legal capacity to bring the action, a Defendant with capacity to defend, and a claim with cause of action against the Defendant, and the action has satisfied all preconditions for instituting the action, the fact that .a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity – see Oladehinde (sic) & Awo v. Oduwole 1962 WNLR 41”.

Learned counsel thereafter, submitted that it is hard to see how the Appellants want the Supreme Court to hold that a suit is incompetent just because, the Plaintiff chose to sue the individual who injured her family’s proprietary interest. That the issue is academic and should be answered in the negative and resolved against the appeal (sic) (i.e. Appellants). He so urged the court. From what I have stated or discussed above, my answer to the Appellants Issue 3.02 as couched, is rendered in the Affirmative or Positive, while my answer to the Respondent’s Issue 2, is in the Negative. As regards Oladeinde (not hinde) & anor. v. Oduwole’s case (supra) which was referred to in Chief Kalu v. Chief Odili’s case (supra), dealt with mis-description resulting in non-description of a party, it was held that it was not necessarily fatal. However, it was held that an action, cannot be defeated on the grounds of non-joinder or misjoinder and Karibi- Whyte, JSC’s pronouncement was quoted or referred to thus:

“It is well settled law and practice in all our courts that where an action has not been properly constituted, whether as regards joinder of the causes of action or as to parties, it has always been procedurally beneficial and prudent to raise objection to the defect in the action before or at the hearing of the action – See Martins v. Federal Administrative – General (1962) 1 ANLR 120….”

[the underlining mine]

In the Obiode & ors. v. Orewere & ors. case (supra), it was/is stated that the rule as to representative action, is a rule which ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice.

I will deal with Issues 3.03 and 3.04 of the Appellants and Issue 3 of the Respondent together. Order 3 Rule 2(1) of the Court of Appeal Rules, 2002, provides that all appeals shall be by way of rehearing. In other words, appeals are in the nature of rehearing in respect of all issues raised in respect of the case. See the cases of Sabrue Motors Nig. Ltd. v. Rajab Enterprises Nig. Ltd. (2002) 4 SCNJ 370 @ 382, – per Ogwuegbu, JSC and Maersk Line & anor. v. Addide Investment Ltd. & anor. (2002) 4 SCNJ 433 (Q), 472 – per Ayoola, JSC. See also Section 16 of the Court of Appeal Act and Order 3 Rule 23(1) of the Court of Appeal Rules 2002.

I note that at page 19 paragraph 7.10, of the Appellants’ Brief it is conceded,

“that there are some inaccuracies in the findings of facts made by the lower court but his main finding that the Plaintiff’s claim lacked credibility is justified by the numerous contradictions in the evidence given by the Plaintiff and her other witnesses”.

[the underlining mine]

I also note that some of the inaccuracies or even one or any of them, were or was ever stated in the Appellants’ Brief. In my respectful view, this concession, by simple inference by me, means in effect, that the trial court, failed to and did not adequately evaluate the evidence before it. But at page 126 of the Records, the attention of the court below was drawn to several instances to show or illustrate that the decision of the learned trial judge, was premised on some specified findings of facts which were either not pleaded or not given in evidence at the trial. The Court below, thoroughly in my respectful but firm view, in its re-valuation of the evidence before the trial court, highlighted them. Before doing so, it reproduced the material pleadings of the parties at pages 121 to 123 of the Records and the material evidence of the parties and their witnesses. It reproduced the issues of the Appellant/Respondent for determination at page 126 thereof and noted that the Respondent, raised five issues which it stated, were/are mere repetitions of the three issues formulated by them in the Appellant’s/Respondent’s Brief hence it did not consider it necessary, to reproduce the five issues of the Respondent in his Brief. It proceeded to consider the appeal based on the issues formulated in the Appellants’ /Respondents’ Brief. It noted or identified the decisions of the learned trial Judge which was premised on some specific findings of facts which were either not pleaded or not given in evidence at the trial as submitted by the learned counsel for the Appellant/Respondent in respect of Issue 1. Seven of such wrong or faulty findings of facts were or are;

“1. the court’s observation that the defendant debunked the plaintiffs case by his comprehensive plan – Exhibit D1 which subsumed the Plaintiff s land;

2. that the defendant’s case was more probable because three of the plaintiff s witnesses were either mercilessly crushed to submission under cross-examination;

3 that the traditional history produced by the plaintiff appeared to be self-contradictory and fell short of credibility;

4. that the court was more convinced by recent acts of ownership of the defendant on the land in dispute e.g. by the sales made to purchasers out of the land in dispute who had peacefully built on the land;
5. that the defendant had successfully challenged the plaintiffs attempt to show that there were economic trees on the land in dispute.
6. that the plaintiff had failed to establish by credible evidence her grip on the land in recent times; and
7. that the defendant had shown how the plaintiff s father got the land – i.e. as a tenant through D.W. 2”.

See pages 126 to 127 of the Records.

The arguments in support of these faulty findings, appear in at pages 127 to 129 of the Records. The reply of the learned counsel for the defendant/Respondent at page 129 thereof, is to the effect that the learned trial Judge, properly evaluated the evidence placed before him and that he in fact, came to a right decision. Reference was made to the defendant’s survey plan Exhibit Dl and it was submitted that the learned trial Judge, was right in holding that the said survey plan was more comprehensive.

I will add one more faulty finding of fact as also shown in the Respondent’s Brief. The learned trial Judge, held that the Defendant consistently and successfully, resisted encroachments on the land in dispute. From the Records, evidence of resistance on encroachment mistakenly and wrongfully credited to the Defendant by the learned trial Judge, was in fact, the Respondent’s case and were pleaded in paragraphs 22, 23 and 27 of the Statement of Claim and given in evidence by her at pages 17 and 18 of the Records.

At page 130 thereof, the court below stated as follows:

“The main issues raised in the appeal are whether the findings of facts made by the learned trial Judge are supported by the evidence placed before the court and whether the conclusions reached by him can be justified having regard to the admissible evidence placed before the court. The law is settled that although it is no business of an appeal court to substitute its view of the evidence for that of the trial Judge who has the singular opportunity of listening to the witnesses and watching them, the appeal court could however, in the interest of justice, disturb, alter, reverse or set aside the lower court’s findings of facts under certain circumstances. Among such circumstances are:

(1) where the trial court fails to evaluate the evidence adduced before it; or

(2) the trial court has drawn wrong inferences from the primary facts found; or

(3) the facts found by the trial court are wrongfully applied to the circumstances of the case or the findings of facts are not reasonably justified or supported by the credible evidence given in the case.

See Akinola v. Oluwa (1962) SC NLR 352; Federal Commissioner for Works & Housing v. Lababebi (1977) 11-12 S.C. 15; Kuforiji v. VYB. Nig. Ltd. (1981) 6-7 S. C. 40; and Ezeafulukwe v. John Holt Ltd. (1996) 2 NWLR (Pt.432) 511.

Similarly, the law is settled that an appellate court is in the same position as the trial court in relation to what conclusion or inference to draw from primary findings once any of the conditions for such interference, as already enunciated above exists: See Ehimare v. Emhonvon (1985) 1 NWLR (Pt.2) 177; Metalimpex v. A.G. Leventis (1976) 2 S.C. 91; and Runsewe v. Odutola (1996) 4 NWLR (Pt.44I) 143.

Applying the law as decided above to the facts of the instant case, it is clear from the findings of facts made by the learned trial Judge that he did not properly evaluate the evidence placed before him and that some of the findings of facts he made were wrongfully applied to the case before him. Such omissions have therefore created an avenue for this court to interfere with the findings of facts and application of the facts to the case”. [the underlining mine]

See also the concurring contribution of Adekeye, JCA (as he/she then was) at page 137 of the Records. I agree.

The court below, at pages 131 to 133, as it was entitled and justified to do, reevaluated the evidence in the Records bearing in mind also the above principles which it applied. See the cases of Fatoyinbo v. Williams 1 FSC 87; Karibo & ors. v. Grand & anor. (1992) 3 NWLR (Pt.230) 426 (ciJ, 441; (1992) 4 SCNJ 12: Adeleke Iyanda (2001) 13 NWLR (Pt. 725) 1 (CJ, 20; (2001) 6 SCNJ 101; Abey & 5 ors. v. Chief A. I. F. Alex & 2 ors.(1999) 12 SCNJ 234; Iwuoha & anor. v. Nigerian Postal Services Ltd & anor. (2003) 4 SCNJ 258 @ 278 and Morenikeji & 4 ors. v. Adegbasin & 4 Ors. (2003) 4 SCNJ 105 @ 125 – 126 – per Iguh, JSC just to mention but a few.

For example, let me for the avoidance of doubt, reproduce some of the findings and holdings by the court below at pages 131 to 133.

At pages 131, it stated as follows:

“To begin with his findings of facts made in respect of the plaintiff’s survey plan (Exh. P1) where the learned Judge found as a fact that the defendant debunked the plaintiff’s case by his comprehensive survey plan (Exhibit D1) which subsumed the plaintiff’s land, there was totally no evidence to support or justify such a finding of fact or conclusion from the evidence tendered before the court. The true position was that the plaintiff produced and tendered a survey plan of his (sic) land in the area and marked out the area in dispute between her and the defendant. She also showed the surrounding landed properties of her boundary men around her entire land. The defendant, on the other hand, produced and tendered his own survey plan (Exh. D1). In it, apart from showing the land in dispute, it also shows a larger area which was described in the plaintiff’s plan (Exh.P1) as those belonging to her boundary men. The plan (Exh.D1) also contain names of boundary men to the land claimed by the defendant.

The defendant’s land as shown on his survey plan (Exh.D1) shares boundary with the plaintiff’s land on three sides.

But while each of the boundary men named on the plaintiff’s survey plan (Exh.P1) testified at the trial and confirmed sharing common boundary with the plaintiff’s land claiming to have been on the land for over 80 years, and dening (sic) being tenants of the defendant, none of the people shown on the defendant’s survey plan (Exh D1) as sharing boundary with the defendant was called as witness to confirm the said defendant’s claim. No reason was given for the failure to call any of the said boundary men. It is therefore ridiculous for the court to find as a fact that the defendant, had made out a better case than that of the plaintiff in this regard”.

[the underlining mine]

1 I agree.

It continued thus:

“Again the finding of fact that the defendant’s case was more probable because three of the plaintiff’s witnesses were “mercilessly crushed to submission under cross-examination” is also not supported by the printed record. As I have already mentioned above, the four plaintiff’s boundary men that gave evidence at the trial are P. W2, P. W3, P. W4 and P. W5. None of them was subjected to any serious cross-examination. There is nothing on the printed record to show that their claim to have been on their respective portion of the land which spanned over three generations of that each of them shared a common root of title, were seriously challented (sic) under cross-examination. It follows therefore that the court’s finding that the witnesses were mercilessly crushed to submission under cross-examination was totally baseless”.

[the underlining mine]

I also agree.

At page 132, it stated inter alia, as follows:

“The court’s view about the traditional history produced by the plaintiff was self-contradictory and fell short of credibility was also based on wrong premise. The learned Judge based his said finding of fact on the wrong premise that it was Balogun Osungbekun that made the grant of the land to the plaintiff’s ancestors. But the fact pleaded and given in evidence was that Olubadan of Ibadan sent Balogun Osungbekun to go and carve out a place where Oba Adegbeye Atoloye could settle along with his people after the said Oba had approached the Olubadan for such a grant from the land which was then under the control of Olubadan of Ibadan. No contrary evidence was led to the effect that the area was at the material time not under the control of the Olubadan of Ibadan.

Oba Abudulai Ogunlaye (P. W.6), the Olofa of Ofate do confirmed the plaintiff’s story in this respect. In fact Oba Jimo Oyeyomi (D.W.3) the Oluda of Ido-Oshun told the court that Ido-Osun ‘s land and Igbo Ifa are contiguous. There is therefore totally no basis for the rejection bv the court of the traditional evidence tendered by the plaintiff.

[the underlining mine]

I also agree.

At page 132, it stated thus:

“Similarly, the finding of fact made by the learned trial Judge to the effect that “the court was more convinced by recent acts of ownership of the defendant on the land in dispute, e.g. by the sales made to purchasers out of the land in dispute who had peacefully built on the land” was also not supported by the evidence placed before the court. The evidence tendered at the trial was that the plaintiff and each of the four boundary men on the land had been on the land for over 80 years without any disturbance until the defendant came to disturb them about six years before they gave their evidence and that his said act formed the basis of the present action. Similarly although the defendant told the court that he made sales of plots out of the land to such people who had built on it, that story was not supported by the survey plan he tendered (Exh.D1) because no building was shown as existing on any part of the land shown on its said survey plan (Exh.D1).. The defendant also failed to call any of such purchasers to give evidence and no reason was given for failure to do so. There is therefore totally no basis for the Judge coming to the conclusion he reached in this respect”.

[the underlining mine]

I also agree.

At page 133, the following appear inter alia:

“The finding of fact by the learned trial Judge to the effect that the defendant had shown how the plaintiff’s father got to the land, i.e. as a tenant through Lamidi Adeyi Abifarin (0. W.2) is also unfounded and baseless. The defendant had pleaded in paragraphs 24 and 25 of his statement of defence that it was one Fadipe that his family allocated land for farming purposes only out of their land and that it was the same Fadipe that brought the plaintiff’s father on to the portion of the land as a tenant. No where in the defendant’s pleadings was the name Lamidi Adeyi Abifarin (D.W.2) was mentioned. (sic) Again when the plaintiff and each of his four boundary men aforementioned gave evidence, the name of D.W.2 was never suggested to any of them as the person who invited the plaintiff or any of the boundary men to the land as tenant. It is trite law that evidence not pleaded is inadmissible and goes to no issue. Such evidence, If mistakenly taken, ought to and should in fact be ignored by the Judge in coming to his conclusion in the matter before him: See National Investment and Properties Co. Ltd. v. Thompson Organisation Ltd. (1969) NMLR 99; Woluchem v. Gudi (1981) 5 S.C. 291; and Adenuga v. L. T.C. (1950) 3 WACA 125. It follows therefore that the learned Judge came to a wrong conclusion when he found that it was D. W2 that brought the plaintiff’s father to the land as a tenant since such finding of fact was based on unpleaded evidence”.

[the underlining mine]

All the above, cannot be faulted by me. This is because, the said findings of facts, manifests a holistic approach of credible evidence which clearly preponderates in favour of the Respondent. They are evidence of a painstaking evaluation of the evidence in the Records which bind both the parties and the court.

I have deliberately gone this far, in order to debunk and deprecate with respect, the unjustified submission in the Appellants’ Brief that the decision of the court below, is against the weight of evidence led at the trial. If anything, the findings and holdings of the court below, show without any equivocation, that the said findings of facts and holdings of the learned trial Judge, were/are with respect, perverse. At page 23 paragraph 8.06 of the Appellants’ Brief, it is submitted that;

“even where there is conflict of evidence which the trial court fails to resolve the proper course is for the Appellate Court to order a retrial before another judge as the court cannot make any findings in such a situation”.

He later submitted that the court below, was wrong in resolving the traditional histories of the parties when according to him, it had no opportunity of seeing and hearing the witnesses. Amazingly, this submission, is in spite of the overwhelming findings of facts and holdings by the court below and his earlier admission or concession that there were/are some inaccuracies in the findings of fact made by the trial court. This is also in spite of the fact that an appeal as earlier stated by me, is in the nature of a rehearing. The court below, did not have to see and hear the witnesses since, the Records speak for themselves. At page 134 of the Records, the court below, made the following finding inter alia:

“The appellant as Plaintiff has led sufficient credible evidence at the trial to prove three of the five ways set out above. The three are proof by traditional evidence, proof by acts of ownership and proof by acts of long possession”.

I agree. In the first place, as now firmly settled, proof of ownership, is prima facie, proof of possession, the presumption being that the person having title to the land in dispute, is in possession. See the case of Jones v. Chapman & ors. (1847) 2 Ex 803.

Secondly, an Appellate Court, as even noted by the court below at page 130 of the Records (reproduced in this Judgment), is in as much a good position as the trial court, to deal with facts. See also the cases of Fabumiyi & ors. v. Obaje & ors. (1968) NMLR 242 @ 247; Woluchem & ors. v. Chief Gudi & ors. (supra) and also reported in (1981) 12 NSCC 214; Ogbechie & ors. v. Onochie & ors. (1986) 2 NWLR (Pt.23) 484 just to mention but a few. In fact, in the case of Ehimua v. National Oil & Chemical Marketing Oil Co. Ltd. (1996) 5 SCNJ 88 @ 95, this Court – per Kutigi, JSC (as he then was and later CJN), re-visited by way of emphasis so to speak or say, the circumstances or when an Appellate Court, can interfere with the findings of fact or facts of a trial court. Several other cases were cited with approval therein. I rest this Judgment also on these decided authorities.

My answer to Issue 3.03 of the Appellants, is rendered in the Affirmative/Positive. In respect of their Issue 3.04 as couched, my answer, is that the Judgment of the court below, is supported by the evidence in the Records. In fact, the weight of evidence, in favour of the Respondent in the trial court. As regards Issue 3 of the Respondent, my answer without hesitation, is rendered in the Affirmative/Positive.

In the final analysis or end result, I find as a fact and hold that this appeal with respect, is hopelessly unmeritorious. It fails and it is accordingly dismissed. I hereby and accordingly, affirm the said Judgment of the court below setting aside the judgment of the trial court.

Costs follow the event. The Respondent is entitled to costs fixed at N50,000.00 (Fifty thousand naira) payable to her by the Appellants.

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SC.314/2001