Yusufu Ajao Ibitokun V Strabag Construction Nig. Ltd & 5 Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

I. T. Muhammad, JSC.

At the High Court of Justice of Oyo state, holden at Ibadan [trial court], two plaintiffs in a representative capacity and on behalf of Jagun Ibagbe family, originally instituted the action which culminated into this appeal. The 1st plaintiff, the Mogaji or head of the family, took ill during the proceedings in the suit and died before judgment was delivered, leaving the 2nd plaintiff to continue with the case. The claims of the plaintiffs as indorsed on the amended Writ of Summons and in paragraph 44 of the Further Amended Statement of Claim were as follows: ‘1. A declaration that the land in dispute situate, lying and being Jagun Village, Ife road, Ibadan is a portion of Jagun Ibagbe family land. 2. A declaration that the purported lease or alienation of the said portion of the land in dispute by 2nd – 7th defendants to the 1st defendant is void and null not having been made by or with the knowledge, consent or authorization of plaintiffs and Jagun-Ibagbe family. 3. The plaintiffs claim as against the defendants the sum of ono [sic] hundred and fifty five thousand naira [N155,000.00] being special and general damages for trespass committed by the defendants on the land in dispute since 1979 which trespass is still continuing. 4. Injunction restraining the defendants, their servants, agents and/or privies from committing further acts of trespass on the land in dispute. 5. The plaintiffs also claim N20, 000.00 per annum for use and occupation from the date of filing the Writ until possession is given up.’ The facts of the case as stated by the 2nd plaintiff is that the 2nd plaintiff became the Mogaji of Jagun Ibagbe family after the death of the1st plaintiff who was the Mogaji of Jagun Ibagbe family who died during the pendency of the proceedings before the trial court. The plaintiffs instituted the action in this appeal for themselves and on behalf of the members of Jagun Ibagbe family, hence their claims as reproduced above. Plaintiffs claims stemmed from the fact that the 2nd 6th defendants purported to lease the land in dispute to the 1st defendant as their own Ojo family land and not as Jagun Ibagbe family land on the ground that Jagun Ibagbe had partitioned his land among his children during his life time even though Exhibit D admitted in evidence shows that the land in dispute was purported to have been leased to the 1st defendant as Jagun Ibagbe family land in 1978, when Exhibit D was made, which contradicted the oral evidence given on partition by the 2nd – 6th defendants. It is common Immemorial was Jagun Ibagbe family land. It is also clear that it is the 2nd 6th defendants that are claiming that Jagun Ibagbe family land had been partitioned amongst his children and that because Ojo section farmed on the land, it had therefore, been partitioned to Ojo Section. The defendants, thus, had the onus and the burden of establishing the partition of the land in dispute. It is the contention of the plaintiffs that the Jagun Ibagbe family land has never been partitioned and that the 1st plaintiff being the Mogaji of the family then, did not take part in the alienation of the property to the 1st defendant. That the 2nd plaintiff who was shown to be an important and a principal member of the family did not also take part in the alienation. That the lease to the 1st defendant is therefore, void and or voidable at the PAGE| 3 instance of the 2nd plaintiff. The 1st defendant was shown to have entered the land in dispute and bulldozed it and commenced using the land which is evidence of trespass. Both sides accepted that the ancestor of the 1st plaintiff, one Ibitokun, was among the three children of Jagun Ibagbe. There is no dispute that Ibitokun family farms at Olopade and that the 1st plaintiffs ancestor and the 1st plaintiff had been heads of family at different times. The 2nd plaintiff claimed that the children of Jagun Ibagbe were: 1. Ogundele 2. Somotan and 3. Ibitokun The 2nd and 3rd defendants on the other hand, claimed on behalf of other defendants that the three children of the Jagun Ibagbe were: 1. Ojo 2. Adeniran and 3. Ibitokun They also claimed that the farmlands of Jagun Ibagbe were at: [i] Feranjeba – which he gave to Ojo, ancestor of the 2nd and 3rd defendants, [ii] Oke-Omi – which he gave to Adeniran as well as part of Olorunda because of the size of Olorunda farmland, [iii] Olorunda which he gave to Ibitokun save the portion shared to Adeniran. The 2nd and 3rd defendants claimed that the gift of the farmlands was an outright grant that is partition. They claimed that Ibitokun granted part of his land at Olorunda to Adenjinle, a relation of Ibitokun. Whilst Akinpelu, a descendant of Ojo, granted part of the land at Feranjeba to Babasola, the father of the 4th – 6th defendants. When the land in dispute was to be leased to the 1st defendant, the 4th – 6th defendants were not disturbed to lease the portion granted to their ancestor, Babasola to the 1st defendant. The 2nd defendant, who was the appellant at the court below, identified five heads of family after the demise of Jagun Ibagbe as follows: [i] Ogundele [ii] Adeniran [iii] Ibitokun [iv] Dahunsi [v] Salami Adigun Olopade The 2nd and 3rd defendants identified eight heads of family after the demise of Jagun Ibagbe: [i] Ojo [ii] Adeniran [iii] Akinpelu [iv] Ibitokun [v] Dahunsi [vi] Ogunfunmilayo [vii] Salami Olopade PAGE| 4 viii] Yesufu Ibitokun. The 2nd defendant accepted the heads of family from Adeniran and Ibitokun lines of Jagun Ibagbes children but disowned the three children of the family from the 1st plaintiffs line whom both sides accepted as a son of Jagun Ibagbe. He did not call any witness as well from Adenirans line notwithstanding that he accepted the three heads of family including Adeniran from that line. The 2nd and 3rd defendants called members of Adenirans line of Jagun Ibagbes family as witnesses. The 1st defendant also called a member of Adenirans line to confirm what the then Mogaji, head of family from Adenirans line said about the land in dispute. At the end of trial and in a considered judgment, the trial court held that an issue was joined on the paternity of the 2nd and 3rd defendants wherein the 2nd plaintiff concluded that the mother of Orji was a wife to Jagun Ibagbe who brought Ojo to the latters house as a stepson. The trial court preferred the evidence of the defendants. It also held that the 2nd plaintiff is a relation of Jagun Ibagbe but not a grandson. The trial court believed the story and held that the farmlands of Jagun Ibagbe were partitioned and the land belonged to 2nd _ 6th defendants of Ojo section of Jagun Ibagbe family excluding other members of that family. It further observed that it was the lease to the 18t defendant that aroused the interest of other members of Jagun Ibagbes family. Dissatisfied with the trial courts judgment, the 2nd defendant appealed to the court below. At the end of its deliberation, the court below allowed the appeal. The defendants [respondents at the court below] whom I shall henceforth refer to hereinafter as [the appellants], were dissatisfied with the decision of the court below and by an order of this court of 19/2/2007, they were granted leave and extension of time by 14 days Within which to file their appeal. They filed a Notice of Appeal on the 23rd of February, 2007, containing 12 grounds of appeal against the defendants who are the respondents in this appeal. Briefs of arguments were later filed and exchanged by the Parties to this appeal. Learned counsel for the appellants formulated six issues for this courts determination. They are as follows: 1. Whether or not the Court of Appeal was right in failing to make consequential orders? 2. Whether or not the Court of Appeal was right in interfering with the findings of the trial court on the identity of the children of Jagun Ibagbe? 3. Whether or not the Court of Appeal was right in the consideration and treatment of issue two adopted by the lower court on page 196 in the judgment of the lower court? 4. Whether or not the Court of Appeal was justified to disturb the trial courts findings on partitioning of the farmlands ofJagun label? 5. Whether or not the Court of Appeal was right to consider or rely on any evidence which did not form part of the record before the trial court? PAGE| 5 6. Whether or not the Court of Appeal was right in its conclusion that on the totality of the evidence tendered before the trial court, the High Court was not justified in dismissing the plaintiffs claims? Learned counsel for the respondents in his brief of argument formulated five issues for determination as follows: ‘1. Whether or not the failure of Court of Appeal to make any pronouncement on the consequential reliefs on the respondents claims at the High Court caused any miscarriage of justice to any of the parties [Ground 1]. 2. Whether or not the learned Justices of Court of Appeal were justified in re-evaluating the evidence on record as to who were the children of Jagun Ibagbe family as they did (Grounds 2, 3, 4, 5, 6]. 3. Whether or not the learned Justices of Court of Appeal properly, fully and adequately considered issue two formulated by them for a decision in the appeal [Ground 7]. 4. Whether or not the Court of Appeal was justified in holding that on the proper consideration of the totality of evidence tendered in the case, the learned trial. Judge was not justified in dismissing the plaintiffs claims [Ground 8, 9, 10, 11]. 5.Whether or not the learned Justices of Court of Appeal were justified in taking judicial notice of matters in another appeal pending before them on matters relating to the same subject matter in this appeal, in doing substantial justice to the appeal before them.[Ground12]’ In his submission on issue1, teamed counsel for the appellants argued that the court below failed to make consequential order other than on the award of costs. He argued further that there is no doubt that the Court of Appeal, having gone the whole length of re- evaluating the evidence which resulted in disturbing most of the Findings of the trial court, it would have gone ahead as well, to make pronouncement on the reliefs claimed. It was argued that as the judgment of the Court of Appeal stands, both sides could argue for or against the award of special and general damages. It was alleged that there is a lacuna in the judgment of the Court of Appeal and this court is urged to resolve issue one in favour of the appellants. Appellants issue No.2 which covers grounds 2-6 of the appeal deals mainly with the re-evaluation of evidence by the Court of Appeal. Learned counsel for the appellants argued that the trial court adequately performed her duty of evaluating and ascribing probative value to the evidence before it. He further stated the general law on re-evaluation of evidence by an appeal court. It was submitted that where a trial court clearly evaluated the evidence of the parties and justifiably appraised the fact, it is not the business of the Court of Appeal to substitute its own views for that of the trial court. Several cases were cited in support including: GUDA v. KITTA [1999] 12 NWLR [pt.629] 21; OLUWOLE V. AINA [2001] 17 NWLR [pt. 741] 1 et cetera. Learned counsel submitted that the Court of Appeal did not approach the findings of the trial court with caution. He cited an instance where the trial court left out Ibitokun as a direct child of Jagun Ibagbe but the Court of Appeal in re-appraising the facts held that such holding was not borne out of the evidence before the trial court. The new findings of the Court of Appeal, it was argued further, cannot be PAGE| 6 supported from the judgment of the trial court as there was no dispute that Ibitokun was a direct child of Jagun Ibagbe as both sides did not join issue on that and accepted that Ibitokun was a direct child of Jagun Ibagbe. An issue was however, joined on whether the other two children of Jagun Ibagbe were Ogundele and Somotan or Ojo and Adeniran. The trial court resolved the issue after review of evidence and appraisal of facts that the evidence of the defendants on who the other two children of Jagun Ibagbe were. The lower court was wrong in its observation, it was argued further. Learned counsel posited that there are ample evidence on record to support the findings of the trial court on the identity of the children of Jagun lbagbe and the status of the 2nd plaintiff. It was wrong of the Court of Appeal to have interfered with such findings. He urged that issue two be resolved in appellants favour. While arguing issue No.3, learned counsel for the appellants submitted that the Court of Appeal compressed the issues canvassed for determination by both sides into three. Learned counsel for the appellants stated that of all the issues considered by the trial court, the lower court singled out partitioning of the farmlands of Jagun Ibagbe for treatment under issue two whereas the totality of the evidence before the trial court covers more than partitioning. He cited examples of such issues such as whether the plaintiff knew the extent of the land originally owned by Jagun Ibagbe in the area of the land in dispute; the land of Eniayewu, the 7th defendant against whom the suit was dropped, was included; the land of Olugbodi which was eventually conceded not to be part of the land in dispute was included et cetera. Learned counsel for the appellants argued further that by restricting itself to the partitioning, the Court of Appeal has prevented itself and or deemed to consider all the issues covered in the totality of the evidence before the trial court and therefore, some of the reliefs claimed were not considered. Learned counsel for the appellants submitted that issue one adopted by the court of Appeal dealt with the status of the 2nd plaintiff and no more and nothing like second part to issue one. Learned counsel submitted that the lower court erred in law in the construction of issue two adopted by it for determination. This court is urged to resolve this issue in favour of the appellants. Appellants issue No. 4 is also on partitioning of the farmlands in dispute. Learned counsel stated that the trial court considered the totality of the evidence before coming to the decision that Jagun Ibagbes farmlands were partitioned. He stated further that apart from the evidence on partitioning given by the defence as highlighted by the Court of Appeal, the defence gave other pieces of evidence compatible with partitioning. He cited the evidence of 1st defence witness – Yekini Olapade, the son of the Mogaji who died in 1977. Learned counsel chronicled some of the events that took place in recent times after the death of Jagun Ibagbe such as grant of part of the land by Ibitokun to Adejinle at Olomuda; Akinpelu the son of Ojo granted part of his own land to Babasola absolutely. The grand children of AkinpeJu never challenged the 4th – 6th defendants in dealing with the portion granted to Babasola, their grandfather. Again, neither Ibitokun nor any of his children gave evidence to contradict what Ojo and Adeniran sections of Jagun Ibagbe said PAGE| 7 about the land in dispute. He stated that it is clear from such events that what took place during the lifetime of Jagun Ibagbe was more likely to be partition rather than allotment. Moreso, when Jagun Ibagbes children have dealt with their various parcels of land on a manner inconsistent with the family ownership. Learned counsel pointed out that Exhibit D was tendered and admitted after the objection of the plaintiffs counsel was ovrruled. Exhibit D is an agreement for a lease. The Deed of lease was never tendered; the Lease Agreement too, was never tendered. Learned counsel, however, said that what was tendered was an agreement for a lease and that all these were not pleaded by any of the parties. Learned counsel submitted that there is abundant evidence on record to support the findings of the trial court on partition. He urged this court to resolve issue No.4 in favour of the appellants. Issue No.5 challenges the holding of the Court of Appeal when it held that the plaintiffs have failed to discharge the onus on them on all their claims against the defendants and it went on to dismiss plaintiffs claims in toto on all the five legs. Learned counsel argued that there was no ground of appeal against that holding before the Court of Appeal. He submitted that it was wrong for the Court of Appeal to so hold and urged this court to resolve issue No.5 in favour of the appellants. The learned counsel for the appellants urged in issue No. 6 that they raised a Preliminary Objection against the evidence that was not available before the trial court which was in respect of an action instituted after the conclusion of this case before the High Court. It was therefore, a piece of evidence that was never considered by the trial court and the judgment of that court was never based on it. This, the Court of Appeal affirmed. The Court of Appeal declined to make a pronouncement on the preliminary objection on facts occurring after the conclusion of the case. It then went ahead to rely on same in coming to a decision on this appeal. The court below, it was further submitted, fell into same error and it amounts to exceeding its jurisdiction. The Court of Appeal is not competent to consider any matter outside what was placed before the trial Court. Learned counsel for the appellants urged that issue No.6 be resolved in appellants favour. He finally urged that this appeal be allowed, set aside the judgment of the Court of appeal and restore the judgment of the trial court. It is clear from the submission of learned counsel for the appellants that the appellants main complaint in their issue No. 1 is that the court below failed to make any consequential order apart from the award of costs. My understanding of a consequential order is that it is that order which gives effect to a judgment or order to which it is consequential. It is directly traceable to or flowing from that other judgment or order duly prayed for and made consequent upon the reliefs claimed by the plaintiff. See: ODOFU & ANOR V. AGU & ANOR [1992] 3 NWLR [part 229] 350 at page 372. The plaintiffs claims were, after the consideration of evidence by the learned trial judge, entirely dismissed. The court below, however, on reviewing the evidence placed before the trial court, found that the learned trial judge was not justified in dismissing the plaintiffs claims, the court below found merit in the appeal and allowed same. In the words of OKUNOLA, JCA, [of blessed memory] who delivered the leading judgment, wherein he stated, inter alia: PAGE| 8 ‘I hold that based on the totality of the evidence tendered before her at the lower court, reviewed supra, the learned trial judge was not justified in dismissing the plaintiffs claims. Consequently, the 2nd part of issue one is also resolved in favour of the appellant against the respondents. In sum, this appeal has merit and it is allowed with costs of N5, 000. 00 to the appellant… [Underlining supplied for emphasis] I am in agreement with the learned counsel for the respondents in his submission in the respondents brief of argument under issue one thereof that the proper interpretation to be given to the above excerpt from the lead judgment is that the sum total of the judgment, based on the issues treated is that all the claims of the respondents succeeded and were granted. For the avoidance of any doubt, the plaintiffs’/respondents claims at the trial court and which were also set out by the court below in its judgment read as follows: [1] A declaration that the land in dispute situate, lying and being at Jagun Village, Ife Road, Ibadan is a portion of Jagun Ibagbe family land. [2] A declaration that the purported lease or alienation of the said portion of the land in dispute by 2nd – 7th defendants to the 1$ defendant is void and null, not having been made by or with the knowledge, consent or authorization of plaintiffs and Jagun­Ibagbe family. [3J The plaintiffs claims as against the defendants the sum of One Hundred and Fifty Five Thousand Naira [N155, 000. OOJ being special and general damages for trespass committed by the defendants on the land in dispute since 1979 which trespass is still continuing. [4] Injunction restraining the defendants, their servants, agents and/or privies # from committing further acts of trespass on the land in dispute. [5J The plaintiffs also claim N20, 000. 00 per annum for use and occupation from the date of filing the Writ until possession is given up. These were the claims that were entirely dismissed by the trial court, and on appeal to the court below, the appeal succeeded and it was allowed. When an appeal is allowed by an appellate court without any condition[s] attached, it means, simplicita, that the judgment /decision/order of the lower court is effectively set aside. Where the appellate court exercises its general powers and steps into the shoes of the court below it, to do all that the court below ought to have done but which it failed to do, including re-evaluation of evidence, as in this case, the appellate court can make such valid decisions or orders which the court below it ought to have made. The interpretation of the judgment of the court below in allowing the appeal is that if the trial court in this case had properly evaluated the evidence placed before it, it would have granted all the reliefs prayed by the plaintiffs as found by the court below. In dealing with this issue in its judgment, the trial Court stated inter alia: ‘The plaintiffs have failed to discharge the onus on them on all their claims against the defendants and I cannot but dismiss plaintiffs claims in toto on all the 5 legs. Plaintiffs’ claims are dismissed against the defendants. “{Underlining for emphasis] Reference to the dismissal of the plaintiffs claims, with particular emphasis on the 5 legs, cannot be made in my view to any other claims apart from the ones placed by the plaintiffs PAGE| 9 before the learned trial judge [which I set out earlier in this judgment] which also correlate with the claims set out by both the trial and appeal courts in their respective judgments. While allowing the appeal before it, the court below held as follows: ‘I hold that based on the totality of the evidence tendered before her at the lower court, reviewed Supra, the learned trial judge was not justified in dismissing the plaintiffs claims. ‘ {Underlining for emphasis]. Although I am in agreement with the learned counsel for the appellants in his submission that the Court of Appeal having gone the whole length of re-evaluating the evidence, resulting in disturbing most of the findings of the trial court, it would have gone ahead to make pronouncement on the reliefs claimed, That certainly is the most ideal thing in drawing up a well written judgment. I do not however, think that the omission by the court below to set out seriatim, the plaintiffs claims which were already captured in the statement of claim and in both the trial and appeal courts respective judgments, that such omission could cause any miscarriage of justice on the side of the losing party. Although the fundamentals in writing a good judgment which a trial court is enjoined to adhere to comprising of among other requirements, such as: [a] making a brief statement of the type of action! Offence being adjudicated upon, [b] Setting out the claim/offence in full or in part, [c] A review of the evidence led, [d] appraisal/evaluation of such evidence, [e] Making findings of fact therefore, [f] Consideration of the legal submissions made and/or arising, and findings of law on them and [h] Conclusion that is verdict/final decision/order [s]. Yet, it is not infrequent that you find different judges with different styles of writing judgments. Some are so brief in nature, others are verbous and some may decide to take a middle course. Whichever style a judge adopts, what is important is c1earity in the language in which the judgment is written and delivered and that justice should be seen by all to have been done to the parties in dispute. A retired Justice of this court had an opportunity to observe, while he was sitting as a Court of Appeal Judge, that a succinct or concise judgment in this context must not be too brief. It should certainly not be long. It should be of average length and this involves covering all the required contents of a good judgment in summary. UCHE OMO, JCA, [as he then was] in a paper titled ‘The Art and Science of judging: [1] style and creativity [2] Maintenance of status quo’], in 1989 Judicial Lectures: Continuing Education for the Judiciary. See: further: MOGAJI V. ODOFIN [1978] 4 SC 91 at page 93; WOLUCHEM V. GUOI [1981] 5 SC 291; OLUBODE V. SALAMI [1958]. INCAR NIGERIA L TO. V. ADEGBOYE [1985] 2 NWLR [part 133] 24; 001 V. OJAIFE [1987] 2 NWLR [part] 511. OLUFOSOYE V. OLURUNFEMI [1989] 4 NWLR [part 95] 26; DURU V. NWOSU [1989] 4 NWLR [part 113] 24. ISAAC STEPHENS V. THE STATE [1986] 5 NWLR [part 46] 978 at page 1000. ONUOHA v. THE STATE [1988]3 NWLR [part] 475 at page 476; ADEYEYE & ORS. V. AJIBOYE & ORS. [1978] 3 NWLR [part 61] 432, at page 452 – 452. Perhaps there is need for me to give a graphic form of how appeals are treated at the appellate bench. The High Court itself exercises, sometimes, appellate jurisdiction. It PAGE| 10 entertains appeals from the Magistrate Courts and the customary Courts. Appeals are brought before the High Court [appellate jurisdiction] by notice of appeal containing grounds of appeal setting out the complaints of the appellant. Arguments are taken from respective parties in relation to the grounds of appeal and judgment is later delivered by either allowing or dismissing the appeal after having examined the decision of the trial court on the point in issue in the light of proper law ascertained by the appellate judges. In the Court of Appeal and this court, after the introduction of brief writing, grounds of appeal are tied to issues which are considered while determining the appeal. Where the trial courts decision is erroneous, the appeal court reverses the decision and substitutes the proper decision. If the complaint or the issue is on facts, the appeal court examines the facts of the case and the findings of fact made by the trial court. If the conclusions or findings of fact cannot reasonably be made or cannot flow from the evidence, the appeal court reverses the trial courts decision on the point and substitutes the proper findings. If such reversal of the findings of facts adversely affects the judgment of the trial court fatally, and makes it impossible for the judgment to stand, the appeal court sets aside the trial courts judgment/decision and substitutes the proper and correct judgment/decision. Similarly, if an argument on ground of law succeeds and makes the judgment of the trial court unsupportable and unjustified, the appeal court sets aside the judgment and enters the proper and correct judgment. The proper judgment may be a dismissal of the claim or charge or an order of retrial. It may be that the claim is proved and succeeds and the defendants are responsible and liable on the claim. It may also be that the plaintiff is non-suited and that no party is entitled to judgment it may be that the trial court has no jurisdiction and the claim is struck out. If it is a criminal charge, it may be that the offence is not proved and the appellant is discharged and acquitted. If the prosecutor appealed, it may be that the charge is proved and the proper judgment is of conviction of the respondent and sentence or one of retrial in a competent court. The claims in this appeal which were litigated by the parties were dismissed by the trial court. On appeal, however, they were later restored and granted by the court below in favour of the plaintiffs/respondents.

SC.272/2003