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In The Supreme Court of On Friday, the 18th day of January 2008
Before Their Lordships
S.C. 40/2003
Between
And
Judgement of the Court
Delivered by
George
Adesola Oguntade. J.S.C.
The original plaintiff at the
trial court was Alhaji
Bisiriyu Sule. He died whilst the matter
was before the court below on appeal. The present appellants were
substituted for him by the court below. Similarly the original defendants
were three. The 2nd and 3rd of them died whilst the
case was pending at the trial court. The subsisting 1st defendant
prosecuted the case to conclusion at the High Court. He also died whilst the
matter was before the court below. The present respondents were accordingly
substituted for him.
The appellants, as the
representatives of Ikotun and
Maton families of lyesi
Otta,
"1.
A declaration that the plaintiff is entitled to a statutory right of
occupancy over all that piece or parcel of land situate, lying and being at
lyesi village, Otta,
2.
A declaration that by refusing to pay customary tribute and by
claiming ownership of the piece of land which the defendants hold of the
plaintiff as customary tenants of the plaintiff, the defendants have (sic)
thereby forfeited their interest as customary tenants to the Plaintiff.
Annual rent of said land being N100.00
3.
Possession of the said parcel of land in dispute.
4.
Perpetual injunction to restrain the defendants, their agents or
assigns from encroaching on the said parcel of land."
The parties filed and
exchanged pleadings which they amended a number of times. The suit was tried
by Oduntan J. of the Ogun
State High Court. The Plaintiffs called six witnesses. The defendants called
seven witnesses. On 19-12-94, the trial judge in his judgment granted all
the four reliefs sought by the plaintiff. The defendant was dissatisfied
with the said judgment. He brought an appeal before the Court of Appeal,
On 26-11-2001, the court below
substituted the present appellants for the original plaintiff who was dead.
Similarly, the court on 21-2-02 substituted the present respondents for the
original defendant who was also reported dead.
The appellants were
dissatisfied with the judgment of the court below. They have brought this
appeal. In their amended Notice of Appeal dated 22-03-05, they
"1.
Whether having regard to the manner in which the
Respondents/appellants in the lower courts formulated their 2nd
issue for determination and the Court of Appeal having held that their
argument on inordinate delay was unmeritorious, the Court of Appeal was
right in proceeding to re-evaluate the evidence of both parties at the
trial court, set aside findings of fact and make findings of facts thereon
and come to the conclusion that the Respondents/appellants in the lower
court had failed to discharge the burden of proof on it on the basis that
the 2nd issue for determination had a second limb and it
dovetailed into whether the learned trial judge was right in giving judgment
based on evidence adduced before him.
2.
Whether the learned trial judge wrongly made use of evidence in
previous proceeding and if so whether this was gross enough to vitiate the
proceedings and overturn the judgment; whether the failure of the Court of
appeal to make a pronouncement on whether or not the purported error of the
trial judge is making use of evidence in a previous proceedings is gross
enough to vitiate the judgment of the trial court is fatal to the judgment
of the Court of Appeal."
The respondents in the appeal
have also formulated two issues for determination. The respondents’ would
appear to be a better presentation of the matter in contention between
parties. The issues read:
"i.
Whether the second issue formulated by the appellants (now
Respondents) at the Lower court did not dovetail into a complaint against
evaluation of evidence by the trial court thus empowering the learned
Justices of the Court of Appeal to proceed to re-evaluate the evidence of
both parties and make appropriate findings after their Lordships had
discerned from the record of appeal that the trial judge had failed to avail
himself of the opportunity to conduct a proper evaluation of the facts
presented by parties at trial.
ii.
Whether the learned Justices of the Court of Appeal were not right in
holding that the leaned trial judge had made a wrong use of evidence in
previous proceedings in a gross manner which engendered a miscarriage of
justice and thus vitiated the judgment of the learned trial judge."
I intend to consider together
the two issues for determination because both closely inter-related. But it
is helpful to expose briefly the nature of the dispute which was submitted
to the trial court for adjudication. The case made by the plaintiff in his 3rd
Further Amended Statement of Claim may be summarized thus:
The land in dispute was first
settled upon by the Plaintiffs great grandfather by name
Olakoru a hunter who migrated from Ile-Ife.
Olakoru named the land
Ikotun. Following the death of Olakoru,
his descendants known as Ikotun and
Matori families have continuously exercised
rights of ownership over his land. In exercise of such right, a portion of
the land was given to one Akilodi. The said land
was known as Isidana compound. At
Akilodi's death, his land was inherited by his
son Owolola. Owolola
later brought on the land other persons including the defendant's
predecessor-in-interest as customary tenants. The defendant paid customary
tributes in the form of yam and oil to Ikotun
and Matori families. When the defendant felled
trees on the land, he gave portions thereof to plaintiff’s families. The
defendant has since been felling trees without paying the due tributes to
the plaintiff’s families. He has also laid a claim of ownership to the said
Isidana land. The plaintiff therefore brought
this suit claiming as earlier stated in this judgment.
The defendant raised his own
traditional history which contradicted the plaintiffs. The defendant pleaded
that the land was first settled upon by his ancestor named
Osidana who migrated from Ile-Ife over two
hundred years ago. Osidana was a hunter. He also
cultivated the land. He brought a shrine thereon which was worshipped as a
deity. The shrine, known as 'Amoola' was still
regularly worshipped. The descendants of Osidana
have through the year’s exercised acts of ownership over the land and
granted portions thereof to diverse persons. The defendant denied that he
and his forbears were plaintiff’s customary tenants.
It was on this state of
pleadings that the suit was tried by Oduntan J.
at the Ogun State High Court. At the trial, the
plaintiff tendered as exhibit ‘A’ a transcript of
evidence given by one Isaac Bankole in suit No.
OTB/172. CV.71 between
Alhaji Bisiriyu
Sule (the present plaintiff) and Michael
Aina at
At page 319-320 of the record
of proceedings, the trial judge said:
"At page 6 of exhibit 'A', 1st
D.W, stated under cross-examination thus-
‘Ogunsi
begat AinaOta.
Ainaota was the son of
Osidana. Ogunsi was the son of
Osidana’
It is obvious that 1st
D.W. has prevaricated in respect of Ogunsi. In
exhibit 'A' page 7, 1st Defendant's witness stated that
Oyekanmi begat Ogunsi,
Ogunsi begat Bankole
and Aina Ota Bankole
Ota is my own father.
(c )
At page 7 of exhibit 'A', 1st D.W. stated thus-
'The road bears
Osidana,
I do not know whether land is allotted to anyone on
Isidana land. I was not told by my great grand father. I did not know
any person to whom land was allotted to on the
1st Defendant's
Witness Isaac Bankole at page 7 of exhibit A
stated under cross examination thus -
'We have farm on the land in
dispute;
We did not allot land to anybody on
the land in dispute.'
The evidence of 1st
Defendant's Witness at page 7 of exhibit 'A'
shows that the defendants are customary tenants of the plaintiffs and
that they had no title to the land in dispute. The defendant's family could
not have allotted land to the 3rd D.W. or his father.
At page 7
of exhibit 'A', the 1st Defendant Witness.
Isaac Bankole during cross-examination stated
thus-
'.............. The first farm
my brother cultivated on the land in dispute was seized from him by the
father of the Plaintiff. ...... The second plaintiff is the
Owolola was the first person to cultivate farm
on the land in dispute and he is the descendant of second Plaintiffs great
grand father.'
It should be noted that Isaac
Bankole's farm is within the area edged green on
exhibit 'G' claimed by the defendant."
Section 34(1) of the Evidence
Act provides:
"34(1)
Evidence given by a witness in a judicial proceeding or before any
person authorized by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding or in a later stage of
the same judicial proceeding, the truth of the facts which it states, when
the witness is dead or cannot be found or is incapable of giving evidence or
is kept out of the way by the adverse party or when his presence cannot be
obtained without an amount of delay or expense which, in the circumstances
of the case the court considers
unreasonable:
Provided-
(a)
that the proceeding was between the same
parties or their representatives in interest;
(b)
that the adverse party in the first
proceeding had the right and opportunity to cross-examine; and
(c)
that the questions in issue were
substantially the same in the first as in the second proceeding."
Now exhibit 'A' in the current
proceeding was tendered by consent. There was therefore no opportunity of
testing if its reception in evidence complied with .the requirements under
section 34(1) above. It is settled law however that such evidence may be
used for the purpose of cross-examining as to credit: See
Alade v.
Aborishade(1960) S.C.N.L.R 398; Shonekan
v. Smith (1964) 1 All N.L.R. 33.
It
is wrong and improper to treat the evidence given by a witness in a previous
proceeding as one of truth in a subsequent or later proceeding, in which he
has not given evidence. See Obawole &
Anor. v. Coker (1994) 5 NWLR 416,
Alade v. Aborishade
(supra); Enang & Anor.
V. Ukanem & Ors. (1962) 1
All.N.LR. 530,
and Ariku
v. Ajiwogbo
(1962) 2 S.C.N.L.R 369.
It is apparent from the
passage I have reproduced above from the judgment of the trial judge that
the court used the evidence given by Isaac Bankole
in a previous case as if he had given the evidence in the current case. The
evidence given by Isaac Bankole in exhibit 'A'
was used by the trial judge to assess the veracity of the defence witnesses
in the current case. The evidence given in the current case which did not
conform with that of Isaac
Bankole on the previous case was seen as untrue. This was a very
erroneous approach. The court below in the lead judgment of
Onalaja J.C.A. (presiding) reacted to the
occurrence in these words:
"Applying the cases of
Ayinde v. Salawu
(1989) 3 NWLR (Pt. 109) page 297 at 315; Alade
v. Aborisade (1960) 5 FSC 167 at 172-173;
Owoyin v. Omotosho
(1961) 1 All NLR 304 at 308;
Ariku v. Ajiwogbo
(1962) 1 All NLR 629 at 631-2 all pointed to the rule that evidence
given in a previous case can never be accepted as evidence by the court
trying a later case except under
Section 34(1) Evidence Act, which was not applied by the learned trial
judge. Having not complied with
Section 34 Evidence Act, Exhibit ‘A’ was inadmissible notwithstanding
its admissibility without objection by appellant. As Exhibit ‘A’ was
inadmissible this court has power to expunge it from the record of appeal
as a trial court was only allowed to admit admissible evidence, so this
Court should expunge Exhibit A as decided in Ariku
v. Ajiwogbo (supra)"
I agree with the reasoning and
conclusion of the court below on the point. Now, the present respondent
before us was the appellant before the court below. It is more precise
whilst discussing this aspect to refer to him as the defendant and the
present appellant before us as the Plaintiff. The defendant in his appeal to
the court below against the judgment of the trial court formulated as his 2nd
and 3rd issues for determination in the appeal the following:
"2.
Whether the learned trial judge owing to the inordinate lapse of time
between when hearing commenced and the delivery of judgment had not become a
complete stranger to the facts of the case and was consequently not in a
position to form a proper view of the credibility of the witnesses on the
most vital and contested issues. This issue encompasses grounds B, D, E, F,
G, 1 and k of the grounds of appeal.
3.
Whether the learned trial judge was right to demolish the defendant's
case other than as provided by law. This issue arises from ground C of the
grounds of appeal."
In reacting to issue No. 2
above, the court below said at pages 469-470 of the record:
"After a careful consideration
of the arguments proffer by appellant and respondent on issue 2 in their
respective briefs of arguments notwithstanding that I resolved the issue in
part on inordinate delay in favour of Respondent as there was strict
compliance with the provision of
Section 294(1) 1999 Constitution on the second limb of issue 2 as to
evaluation, ascription and assessment of evidence leading to the burden of
proof that as respondent sought declaratory and Injunctive orders after an
appraisal of the, facts and law based on the pleadings I come to the
irresistible conclusion that respondent on the balance of probability did
not establish the grant of rights of occupancy to him, the grant by the
lower court more especially that the burden on appellant who did not set up
a counter claim was merely to defend, defended effectively. The judgment
entered against appellant was not properly proved against him, his case is
cogent and more convincing thereby the second limb of issue 2 is resolved in
favour of appellant leading me to allow the appeal.
The judgment of the lower court
that granted statutory right of occupancy in favour of respondent against
appellant was a wrongful exercise of the judicial discretion of the learned
trial Judge and thereby setting aside the said grant of statutory right of
occupancy relief one of the claims in paragraph 30 of the Statement of Claim
is dismissed as the grant of statutory right of occupancy is refused by me."
(Underlining mine)
It would seem that the
approach taken by the court below was to rely on what it described as the
second limb of the 2nd issue for determination to arrive at the
conclusion that the general evaluation of evidence by the trial court was
faulty and unfair to the defendant. It is this aspect of the judgment of the
court below that has come under attack and criticism by the
plaintiff/appellant. Plaintiffs counsel has argued that it was an error on
the part of the court below to have relied on a supposed 2nd part
of issue No.2 to upset the judgment of the trial court wherein the evidence
of witnesses had been fully considered and evaluated. Counsel submitted that
the court below was bound to restrict itself to only the issues raised by
parties issues submitted to the court for adjudication. Counsel relied on
Olawosago v.
Adebanjo (1998) 4 NWLR (Pt. 88) 283 where this court
said:
"It is necessary to emphasize
the purpose of formulating issues for determination in briefs. Like
pleadings to litigation between parties the issues formulated are intended
to accentuate the real issue for determination before the court."
Other cases referred to by
appellant's counsel include F.B.N. (Nig.) Pic.
v. M. O. Kanu &
Companny(1999)9 NWLR (Pt. 619) at 496-497;
Rotimi v. Faforiji
(1999) 6 NWLR (Pt. 606) 305; Acme Builders Ltd v. KSWB (1999) 2 NWLR (Pt.
590) 288; Iguebe v
Ezuma (1999) 6 NWLR (Pt. 288) 205.
I have no doubt that
appellant's counsel is correct in emphasizing that parties and the court
alike must confine themselves to the issues formulated by the parties for
determination in the matter before the court. It is only when the court
confines itself to the issue submitted to it for determination that it can
be said that it is engaged in an attempt to fulfill
its constitutional duty of granting a fair hearing to parties engaged in a
dispute. A court which goes outside the issues submitted to it for
adjudication is in a true sense only engaged on a frolic of its own and not
performing its constitutional role. I cannot therefore fault the argument of
counsel on the principle espoused in his argument.
But it would appear that
counsel viewed the matter too narrowly. Counsel must have erroneously taken
the view that the power exercised by the court below in evaluating the
available evidence after the findings of the trial court based on the
evidence of a witness in exhibit A who did not testify before the trial
court has been excluded was unavailable to it. I reproduced above the 3rd
issue for determination raised by the defendant before the court below. In
his ground 'C' of the Notice of Appeal, the defendant raised the complaint
on the impropriety involved in a trial court basing its findings on the
testimony of a witness in a previous case when evaluating evidence in the
current case. The said ground of appeal reads:
"C.
The learned trial Judge erred in law in relying on evidence of
witnesses in abortive proceedings in
ways other than those prescribed by law and thereby occasioned a
miscarriage of justice.
Particulars of Error
(i)
The evidence of one Isaac Bankole
contained in Exhibit 'A' but who did not give evidence
in these proceedings was used against the Defendant.
(ii)
Evidence that were not used by Plaintiffs counsel to contradict DW1
were unilaterally employed by the Court to damage Defendant's case without
the witness being given the opportunity of reacting thereto one way or the
other.
(iii)
Evidence in earlier or abortive proceedings are
generally irrelevant to current proceedings except when deployed to test the
veracity of a particular witness in a current case."
The defendant formulated his 3rd
issue on the said ground of appeal ‘C’ at pages 361 to 366 of the record of
appeal, the defendant's counsel copiously argued that the trial court was in
error to have relied in the current case on evidence given in a previous
case. The plaintiffs counsel similarly canvassed arguments at pages 394-397
of the record to counter the argument of the defendant's counsel. Clearly
therefore this was not a case where the court below responded to an issue
not raised before it. The court below was clearly responding to the
defendant's issue 3.
If as the court below found
and I agree with it, that the trial court was in a gross error to have
relied on the evidence of a witness who did not testify before it in the
evaluation of evidence, surely there was a plenitude of power available to
the court below to determine whether the evidence available or left on
record after the testimony of Isaac Bankole in
exhibit 'A' has been excised would be sufficient to sustain the judgment
given in favour of the plaintiff by the trial court. The court below made
the mistake of arriving at the right decision whilst it purported to be
considering the second leg of the 2nd issue whereas it could have
come to the same conclusion by simply considering defendant's issue No. 3
which copiously raised the same matter. This was a patent mistake made by
the court below which did not derogate from the soundness of the reasoning
that a trial court could not in a current case rely on the testimony of a
witness in a previous case who has not.
I observed earlier that the
court below by implication dismissed the plaintiff/appellant's case. Was the
court below correct to have done so?
Ordinarily, the nature of the
error made by the trial court would have warranted the court below making an
order for a retrial not dismissal of the plaintiff’s case. But it seems to
me that the court below was right in its conclusion that the trial court
completely failed to properly evaluate and assess the impact and effect on
plaintiffs case of the findings which the trial court itself made. Indeed,
it seems to me that on a close examination of the plaintiff’s pleadings
alone, his case would fail. Let me start with a consideration of the
pleadings. In paragraphs 14 to 24(b) of the 3rd Further Amended
Statement of Claim, the plaintiff pleaded:
"14.
lyanda the
grandson of Olakoru exercising rights of
ownership on behalf of the Ikotun and
Matori Families also gave a portion of family
land to one Akilodi, who came from
Ijaliki
15.
The land given to Akilodi was known as
Isidana Compound.
16.
After Akilodi died, the land was
inherited by his son, Owolola.
17.
Owolola had four children namely:
Oketoyinbo, Salami Akineyi,
Suberu Elegbede and
Sanni Oniyide.
18.
Later three other strangers, Aina Ota,
Bankile and Alakoye
came to lyesi and were allowed by
Owolola to stay with him on the said land
inherited by him from Akilodi, his father.
19.
The said Aina Oata,
Bankole and Alakoye
were only given shelter by Owolola and they did
menial jobs all over lyesi.
20.
When Owolola died, his piece of land was
shared out amongst his four children who continued to farm the land as
customary tenants.
21.
However, after the sharing out of Owolola's
land one of the sons, Suberu
Elegbede committed an offence in the town and
fled to Konifewo (his
22.
Subera Elegbede's
land was as a result given by the Ikotun and
Matori Families to Jinadu
Osaniyibi, brother to Isaac
Bankole and one of the sons of Bankole
(given shelter by Owolola referred to in
paragraphs 18 and 19 above) as customary tenant to farm after he approached
the Family.
23.
The Defendant, Isaac Bankole and
Amusa Bamidele
Aina assisted and helped to farm the said piece
of land with Jinadu
Osaniyibi till the latter died.
24.
When Osaniyibi died the Defendants with
Isaac Bankole and Amusa
Bamidele Aina
continued to farm the piece of land as customary tenants.
24b.
The Plaintiff avers that the Ikotun and
Matori Families gave the Defendants the land in
dispute as customary tenants."
The averments reproduced above
show that the plaintiffs Ikotun and
Matori families gave the
Isidana land in dispute to one Akilodi.
When Akilodi died, the land was inherited by his
son Owolola. When Owolola
died, he was succeeded in interest by his children. It was
Owolola who according to Plaintiffs pleading
gave Bankole, the defendant's
predecessor-in-interest access to the land. The defendant with one
Jinadu Osaniyibi
farmed the land as customary tenants. It was the land shared out to
Suberu Elegbede, one
of Owolola's sons that was
given to Jinadu Osaniyibi,
a brother to Isaac Bankole. Isaac
Bankole and Amusa
Bamidele Aina only
assisted Jinadu Osaniyibi
to farm the land until the latter died. On these averments, the defendant
was portrayed as no more than a farm hand or labourer who did not belong to
either the Akilodi or the
Owolola Family. At the highest, the defendant on the pleading would
be no more than a sub-customary tenant since the Ikotun
and Matori families did not directly grant him
any land. The big question is, how could the
plaintiffs Ikotun and
Matori families bring an action to evict a sub-customary tenant
without joining to the suit the Akilodi or
Owolola family to whom the land was directly
granted? For this reason alone, the plaintiff’s suit was flawed. At page 68
of the record, the plaintiff who testified as 1st P.W. testified
thus:
'My family has constituted
this action against Isidana family. My family
save the Isidana Family the land The
Isidana family pay my family customary tributes
over the land in dispute."
On the genealogy pleaded by
the plaintiff, the defendant or his family was stated to be a member of the
Isidana family. So where is the customary
tenancy relationship between the defendant and the
plaintiffs family.
The defendant in paragraphs 9
and 14 of their Further Amended Statement of Defence pleaded thus:
"9.
The land in dispute marked Green in the Survey Plan attached hereto
was settled upon by the Defendant's ancestor Osidana
when he migrated from Ile-Ife over 200 years ago
14.
Osidana also brought from Ile-Ife a deity
known as 'Amoola' which is still worshipped at
lyesi."
The defendant gave evidence
that the land was called Osidana after their
ancestor who first settled on the land. The plaintiff agreed that the land
was called Isidana which appears to be the
corrupted version of Osidana. How did a parcel
of land given out under customary law come to bear not the names of the
landlords or owners but that of the tenant? The court below at page 466 of
the record made a remark on this thus:
"The 2nd PW in the
underlining alone of his testimony stated that his ancestor did not give
name to the land in dispute but the land is being called by the name given
it by the appellant although the naming or calling of the land in dispute
may be called by one party and named differently by the other party. It is
unheard or preposterous to accept to name a land by a person alleged to be a
customary tenant. Also though respondent alleged that appellant was a
customary tenant yet 2nd PW admitted that they built on the land
in dispute and farmed on land in dispute, it is into law that a customary
tenant cannot name the land in his own name as against the landlord's name."
The trial judge at page 322 of
the record appreciated that the defendant had been on the land for a long
time when he observed:
"There is no doubt that the
defendants family has been in long possession of the land possession of the
land in dispute. As asserted, by him, this has been for 200 years. Evidence
of long possession without more cannot confer title on them as they have
not asserted any right of ownership."
At page 313, the trial judge
also found:
"Both parties to this action
have denied the existence of certain facts and which this Court does not
believe. For instance, some of the plaintiff’s witnesses have denied the
existence of idols on the land in dispute but from the evidence of the 7th
D.W. and exhibit 'G', it is without any doubt that there exist some idols on
the land in dispute."
Section 146 of the evidence
Act provides-
"When the question is whether
any person is owner of anything of which he is shown to be in possession,
the burden of proving that he is not the owner is on the person who affirms
that he is not the owner."
In
Veronica Graham & Ors.
v. llona
Esumai & Ors. (1984) 11 SC 123 at 149,
this Court said:
"The presumption in
Section 145 (now S. 146) of Evidence
Act is a rebuttable presumption and it is rebutted if on the totality of
the evidence led on both sides, the trial judge is not satisfied that the
case in hand is a proper case for him to exercise his discretion to grant a
declaration. It is perfectly legitimate for a trial judge to hold that the
evidence taken as a whole (including any presumptions in favour of the
claimant) does not satisfy him that a case for a declaration has been made
out."
Similarly in
Oduaran v. Asarah
(1972)5 S. C 272 at 285-286, this Court per Elias CJN said:
"........... It is clear that,
on the issue of title, where a plaintiff claims that a defendant is his
customary tenant on a piece of land, while the defendant on the other hand
also claims to own the land, the question before the court is whether the
defendant's possession was by the plaintiffs permission. It is for the
plaintiff to show that they put the defendant there."
It seems to me that at the end
of the day, the central question, is whether on plaintiffs own showing there
are other persons interested in the land in dispute who
were not made parties to the case.
At page 78 of the record, the
2nd P.W. Rasaki
Owolola testified thus:
"The
Ikotun and Matori families gave
Owolola family land at
lyesi village and part of this land is the one in dispute. I know the
Farmland of Isidana. The defendant and
Amusa Bamidele are
Farming there. The Owolola family gave the
defendant and his brother land to farm at lyesi
because they are strangers and this is part of the farm given by
Ikotun and Matori
families to Owolola to farm upon and it is known
as Isidana farmland. I identify the said
Isidana Farmland to our Surveyor
Seweje. I know the farmland of Alfa
Salisu Fatusi which
is part of the Ikotun and
Matori families land. This is also part of the) and in dispute."
(Underlining mine)
The evidence of 2nd
P.W. above conveys that it was part of the land given to
Akilodi/Owolola
family that the Owolola family gave to the
defendant as customary tenant. Remarkably Owolola
family is not a party to this case. Further, the evidence suggests that Alfa
Salisu Fatusi owns a
portion of the land being litigated upon in this case and he has not been
made a party. If the plaintiff has not joined Owolola
and Alfa Salisu Fatusi
to the suit, how could a declaration of title be made in plaintiff s favour?
See Sanyaolu v. Coker (1983) 1 S.C.N.L.R. 170
at 181 and
Oduola v. Gbadebo
Coker (1981) 5 SC. 197 at 220.
On the whole I am satisfied
that the court below was correct in its decision to dismiss plaintiff’s
suit. The plaintiffs woefully failed to establish by evidence the title
which they asserted against the defendant. I would accordingly dismiss this
appeal with Nl0, 000.00 costs against the plaintiffs/appellants in favour of
the defendants/respondents.
Judgment delivered by
Niki
Tobi, J.S.C
This is a land dispute with
the characteristic opposed or opposite claims of ownership. Both parties
claim ownership of the land in dispute through their progenitor. The
appellants, who are the plaintiffs, claim ownership through their
progenitor, Olakoru. The respondents, who are
the defendants, claim ownership through their progenitor,
Osidana. It does not appear that the land in
dispute has a specific name. The appellants describe the land as situate at
The progenitor or genealogy of
this case is zigzag. The case of the appellants is that
Olakoru acquired the land by act of first settlement. A grandson of
Olakoru, lyanda in
exercise of divest rights of ownership gave a portion of the land to
Akinlodu who came from
Ijaliki - the land thus given was known as
Isidana compound After the death of Akinlodu,
The land was inherited by his son, Owolola.
Owolola later allowed three strangers to stay
with him on the land inherited by him from his father,
Akilodu.
The three strangers were
Aina Ota, Bankole
and Alakoye. When Owolola
died, his piece of land was shared out amongst his children, namely:
Oketoyinbo, Salami,
Akineyin, Suberu
Elegbede and Sanni
Oniyide. Suberu
Elegbede committed an offence and had to flee, consequent upon which,
his holding was given to Jinadu
Osanyibi, after he had approached the family for
that favour. Michael Aina (the original
defendant). Isaac Bankole and
Amusa Bamidele
Aina joined Jinadu
Osanyinbi to cultivate the land as customary
tenants. The appellants therefore asserted that the respondents are their
customary tenants who have violated the terms of their tenancy and have thus
incurred forfeiture of their customary tenancy. And so they sued asking for
two declaratory reliefs, one for possession and one for injunction.
The case of the respondents as
defendants is that Osidana, their progenitor,
acquired the land in dispute by settlement over a couple of centuries ago.
Osidana established
The learned trial Judge gave
judgment to the appellants in terms of the reliefs sought. On the issue of
the delay in completing the case, and the award of costs, the learned trial
Judge said at page 326 of the Record:
"The delay in hearing or completing
the hearing of the matter was due mainly to the plaintiff’s counsel who for
one reason or the other asked for adjournments made by them. For these
reason, they are not entitled to any costs for the delay."
On appeal, the Court of Appeal
allowed the respondents appeal in part. The court allowed the appeal on
Issues 2 and 3 of the five issues. Dissatisfied, the appellants have come to
this court. Briefs were filed and duly exchanged. They formulated issues for
determination. I prefer the issues formulated by the respondents. They are:
"I
Whether the second issue formulated by the Appellants (now
Respondents) at the Lower Court did not dovetail into a complaint against
evaluation of evidence by the trial court thus empowering the learned
Justices of the Court of Appeal to proceed to re-evaluate the evidence of
both parties and make appropriate findings after their Lordships had
discerned from the record of appeal that the trial Judge had failed to avail
himself of the opportunity to conduct a proper evaluation of the facts
presented by the parties at trial.
II.
Whether the learned Justices of the Court of Appeal were not right in
holding that the learned trial Judge had made a wrong use of evidence in
previous proceedings in a gross manner which engendered a miscarriage of
justice and thus vitiated the judgment of the learned trial Judge."
As Issue No. 1 relates to
Issue No. 2 formulated by the appellants in the Court of Appeal (now
respondents) in this court, I should reproduce it here for ease of
reference:
"Whether the learned trial
judge owing to the inordinate lapse of time between when hearing commenced
and the delivery of judgment had not become a complete stranger to the facts
of the case and was consequently not in a position to form a proper view of
the credibility of the witnesses on the most vital and contested issues."
Learned counsel for the
appellants submitted that the above issue before the Court of Appeal was
unambiguous and therefore did not have a second limb or dovetail into
whether the learned trial Judge was right in giving judgment based on
evidence adduced before him. He also submitted that even if the learned
trial Judge wrongly made use of evidence in previous proceedings, it was not
gross enough to vitiate the proceedings and overturn the judgment Learned
counsel for the respondents submitted that the above issue before the Court
of Appeal was not limited to, but included a complaint that owing to
inordinate delay in the conduct of the proceedings, the trial Judge had
become a stranger to the facts of the case and was consequently not in a
position to form a proper view of the credibility of the witnesses on the
most vital and contested issues. Counsel also submitted that the Court of
Appeal was correct when it held that the trial Judge made a wrong use of
evidence in previous proceedings in a gross manner and that the wrong use
vitiated the proceedings of the trial Judge.
In its judgment, the Court of
Appeal said at pages 463 and 464 of the Record;
"... the complaint on
inordinate delay though unmeritorious dovetailed into whether the learned
trial judge was right in giving judgment based on the evidence adduced
before him is still without prejudice that the respondent has the burden to
prove his case by preponderance evidence of probability (sic), the discharge
of burden of proof is the next port of call for the consideration by this
court."
It is the above statement that
learned counsel for the appellants is not happy with. I do not see the need
for the storm. In my humble view, the statement is clearly borne out from
the Record. The word "dovetail" means to fit together, to combine neatly.
The Court of Appeal correctly used the word in the context of the issue of
inordinate delay flowing into the learned trial Judge giving judgment based
on the evidence before him. The Court of Appeal, in the context, was talking
about the two issues in some combination; the first one having hegemony over
the second. The court was right on the issue of proof and this is based on
preponderance of evidence or the balance of probability.
The main function of an
appellate court (including the Court of Appeal) is to re-evaluate the
evidence at the trial court. This, the court does, by examining the cold
record of appeal before it, As long as the court does not go outside the
record in search for more inculpatory or
exculpatory evidence, this court will not fault the Court of Appeal. It is
the submission of learned counsel for the appellants that the Court of
Appeal, after coming to the conclusion that the argument of the respondents
on inordinate delay was unmeritorious, was wrong in proceeding to
re-evaluate the evidence of the parties. With respect, I do not agree with
learned counsel. The issue of inordinate delay was not the only issue in the
appeal and so the Court of Appeal could not have closed its eyes to the
other issues. After all: it is good law that an appellate court
must examine and decide on all relevant issues in the appeal. That is what
the Court of Appeal did and I cannot fault the court. This court cannot gag
the Court of Appeal in the re-evaluation of evidence, as long as the court
does that within the precinct or purview of the Record, And that is exactly
what the court did; and so, a full stop.
And I move to the second issue. It
is on the use of evidence in previous proceedings. The learned trial Judge
admitted as Exhibit ‘A’ the proceedings of Suit No.
AB/172CV/71 of Ota Grade B Customary Court. The learned trial Judge
made use of the evidence of Isaac Bankole who
did not testify before him. The Court of Appeal reacted thus at pages 425,
457 and 458 of the Record:
"It is crystal clear that
Exhibit A, a certified true copy of public document was admitted by consent
without objection under section 109,
111 and 112 of the Evidence Act without application under
section 34(1) and 209 Evidence Act...
The learned Trial Judge found as a fact from Exhibit ‘A’ page 7 the
testimony of Isaac Bankole constituted an
admission against the family so proceeded to hold that appellant was
customary tenant of respondent... With respect to the learned trial Judge
page 7 of Exhibit A was not covered by
sections 20 and 21 of the Evidence
Act supra as reflected and alluded to previously in this judgment at
pages 319 and 320 of the judgment of the learned trial Judge. The finding of
fact that by virtue of the testimony of the uncalled witness Isaac
Bankole constituted that appellant's family was
customary tenants was perverse, being perverse as an appellate court can
interfere with the said finding of fact and disturb the finding... Applying
the said cases, the learned trial judge's findings that appellant was
customary tenant of the respondent was based on wrong principle of fact and
law, it is therefore set aside by me."
I entirely agree with the
Court of Appeal. That is the position of the law. As Exhibit A weighed
heavily on the mind of the trial Judge, it is difficult to ignore the
exhibit in the matter.
It is in respect of the above
reasons and the fuller reasons given by my learned brother,
Oguntade, JSC, that I too dismiss the appeal. I
award N10.000.00 costs in favour of the respondents.
Judgment delivered by
Mahmud Mohammed,
J.S.C
This appeal involves a land
dispute in which the action was Commenced in 1987 at the
Ilaro High Court but concluded at the
Sagamu High Court following an order of transfer
of the matter by the Chief Judge of Ogun State.
After the exchange of pleadings which also went through several amendments,
me Plaintiffs in their 3rd further amended statement of claim in
paragraph 30 thereof, claimed as follows:-
"(1.) A declaration
that the Plaintiffs (sic) is entitled to a Statutory Right of Occupancy over
all that piece of land situate, lying and being at
lyesi Village, Ota, Ogun State which is
clearly delineated blue on the Survey Plan No. SXEW/W/2496/4 dated 8th
May, 1984; Annual Rent of the said land being N100.00.
(2.)
A Declaration that by
refusing to pay customary tribute and by claiming ownership of the piece of
land which the Defendants hold of the Plaintiffs as customary tenants of the
Plaintiffs, the Defendants have thereby forfeited their interest as
customary tenants to the Plaintiffs annual rent of the said land being
N100.00.
(3.)
Possession of the said Parcel of land in dispute.
(4.)
Perpetual injunction to restrain the Defendants, their agents
or assigns from encroaching on the said parcel of land."
In their reaction to the
reliefs claimed against them, the Defendants in their Further Amended
Statement of defence asserted that the Plaintiffs and their family have no
right to the land in dispute, describing the claims of the Plaintiffs as
being frivolous, speculative, vexatious and an abuse of the process of Court
and urged the trial Court to dismiss the action.
The Plaintiffs in support of their case against the Defendants called a total o |