In The Court of Appeal of Nigeria
On Thursday, the 22nd day of February, 2018
Before Their Lordships
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
1. CHIEF AUGUSTINE ASADE ADAGUNJA
2. CHIEF Z.O. ASADE
3. CHIEF GABRIEL ASADE
4. MADAM SUBULADE ASADE
5. CHIEF AKINBODE-Appellants
1. OBA SOLOMON ADEBIYI ISIYEMI
2. CHIEF AKINYEMI ISIYEMI
3. CHIEF MUFUTAU LAWAL BAMISEBI
4. CHIEF ABOBADE ISIYEMI-Respondents
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court of Justice in Suit No. HCT/86/2008 delivered on the 3rd of July 2013.
By the Amended Statement of Claim at pages 85-88 paragraph 32, of the record of appeal, Respondents as Claimants at the High Court claimed against the Appellants as Defendants as follows:
1. A DECLARATION that the Claimants are entitled to the grant of statutory right of occupancy to all that piece or parcel of land lying, being and situate at Atan-Ota Ado-Odo/Ota Local Government area of Ogun State as shown in survey Plan No.AKN/OG/007/LD/2009.
2. AN ORDER of perpetual injunction restraining the Defendants by themselves, their agents and privies from further trespassing on the Claimants family land.
3. A sum of One Million general damages for trespass.
4. Possession of the said land.
The brief facts of the Respondents case are that the Respondents claimed to be the rightful owner of the land in dispute as shown in Survey Plan No. AKN/OG/007/LD/2009. They traced their root of title to Isiyemi who was a Prince of Ota, their progenitor, whom they claimed to be the founder of the land in dispute. They also traced how the land devolved from their progenitor to the Respondents. It was the Respondents case that the Appellants approached them for land to cultivate and were given a portion out of the larger portion of Isiyemi’s land to cultivate.
On the other hand, the Appellant’s case is that the land in dispute was first settled upon by Olumisi Adagunja who first cultivated the land which he found during his hunting expedition. Adagunja built his hut at the original settlement called Orile Awori. They alleged that the Respondents were their maternal relations and that the progenitor of the Respondents, Isiyemi came to the land in dispute as a result of infant mortality and he was given land known as Orile Isiyemi. The Respondents lineage became Baale and Oba of Atan because the Appellants progenitor had no male issue.
At the close of the pleadings, the Respondents called seven (7) witnesses and tendered Exhibits 001 and 002 while the Appellants called four (4) witnesses and tendered Exhibit 003. The learned trial Judge found in favour of the Respondents on the 3rd of July 2013. Dissatisfied with the judgment, Appellants filed their notice of appeal on the 26th of July 2013. An amended notice of appeal was filed on the 4th of Oct. 2016 but was deemed properly filed on the 6th of Nov. 2017. Record of appeal was transmitted on the 5th of Feb. 2014 but deemed properly transmitted on the 6th of Nov. 2017.
Appellant’s brief was filed on 4th of Oct. 2016 but deemed on 6th of Nov. 2017. Three (3) issues were distilled for determination therein. Learned Counsel for the Appellants also filed Appellant’s reply brief on the 12th of April 2017 but was deemed on the 6th of Nov. 2017. Learned counsel for the Appellants adopts and relies on the briefs of arguments and urged the Court to allow the appeal.
Learned Counsel for the Respondents submitted that the Respondents brief was filed on the 31st of March 2017 but was regularized on the 6th of Nov. 2017. Learned Counsel for the Respondents adopts and relies on the arguments contained therein. He urged the Court to dismiss the appeal.
The three issues formulated by the Appellant’s are stated hereunder:
(1) Considering the material contradictions in the pleadings of the Respondents and the testimony of the Respondents star witness i.e. the 1st Respondent herein, was the learned trial Judge right in picking and choosing the pleadings and evidence favourable to the case of the Respondents herein and ignoring or leaving out obvious contradictions in 1st Respondent’s testimony which renders him an unreliable witness whose testimony should be rejected in its entirety and the Respondent’s case dismissed? (Ground 2 and 3).
(2) Considering the legal position that a Claimant is precluded from raising new claims that are inconsistent with the Statement of Defence and also the law that an action for trespass to a piece of land and recovery of possession on the same land cannot both be maintained in an action, whether the learned trial Judge ought to have struck out the Respondents Amended Reply to Statement of Defence? (Grounds 4 and 6).
(3) Whether from the totality of pleadings and evidence on record, it can be rightly contended by the Appellant that the judgment of the Honourable Court below was perverse and as such should be set aside and the Respondents case dismissed in its entirety? (Grounds 1, 5 and 7).
The Respondents formulated three issues for determination. They are stated hereunder:
(1) Whether the alleged contradiction in the evidence of the PW6 who was the Respondents??? star witness was material and sufficient enough to deny the Respondents judgment considering the totality of prove of evidence provided by the Respondents to ground their case before the trial Court. (Grounds 1, 2 and 3).
(2) Whether the reference of the Appellants as customary tenants of the Respondents in the Reply to statement of claim without evidence adduced by the Respondents in proof of same. Constitute new claim and whether trespass by the Appellants on Respondents land was not sufficiently proved at the trial Court. (Grounds 4, 5 and 6).
(3) Whether the judgment of the trial Court was indeed preserve in view of the evidence provided by the Respondents to support their claim and failure on the part of the appellants to prove better title to the land which may have influenced the trial Court to decide otherwise. (Ground 7).
I have examined the issues formulated by the parties; I am of the view that the issues 1 and 3 formulated by the Respondents which are less prolix than the Appellants issues would adequately resolve the issues in contention in this appeal. The appeal will accordingly be determined on issues 1 and 3 formulated by the Respondents. The issues will be rearranged. Issue three becomes issue one while issue one becomes issue two. The issues state thus:
(1) Whether the judgment of the trial Court was indeed perverse in view of the evidence provided by the Respondents to support their claim and failure on the part of the Appellants to prove better title to the land which may have influenced the trial Court to decide otherwise.
(2) Whether the alleged contradiction is the evidence of the PW6 who was the Respondents star witness was material and sufficient enough to deny the Respondents judgment considering the totality of prove of evidence provided by the Respondents to ground their case before the trial Court.
Whether the judgment of the trial Court was indeed perverse in view of the evidence provided by the Respondents to support their claim and failure on the part of the Appellants to prove better title to the land which may have influenced the trial Court to decide otherwise.
Learned Counsel for the Appellants submitted that the learned trial Judge took cognizance of pleadings that should have been struck out and also ignored pleadings and evidence that are germane to a just decision of the case before the lower Court. He argued that the original case of the Respondents was that the Appellants forcefully entered their land.
Submitted further that Appellants by their defence gave details of how they came about the land and their acts of ownership. In response to this, the Respondents by their reply to the statement of defence changed their case to the fact that the Appellants are their customary tenants. Learned Counsel for the Appellants submitted that these two assertions cannot be accommodated in one suit as they are not in concert. Reliance was placed on the cases of Amoo v. Aderibigbe (1994) 2 NWLR (Part 324) page 92, Akeredolu v. Akinremi (1989) 3 NWLR (Part 108) page 164 at 172 Para F and Abdullahi v. Gov. Kano State (2014) 16 NWLR (Part 1433) page 213 at 248-249 Paras B-A.
Learned Counsel for the Appellants submitted that there is no where the Respondents pleaded that Isiyemi was ever a Baale or the first Baale at Atan or that he was Baale till 1882. Learned counsel for the Appellants submitted that the learned trial Judge’s judgment is perverse and cannot stand. He relied on the case ofOsuji v. Ekeocha (2009) 16 NWLR (Part 1166) page 117 paras C???D and Atolagbe v. Shorun (1985) 1 NWLR (Part 2) page 360. He urged the Court to re-evaluate the findings and conclusions of the lower Court.
Learned counsel for the Appellants submitted further that proof by way of traditional evidence is one of the ways of establishing title to land. He referred to the case of Idundun v. Okumagba (1976) NSCC 445. Submitted further that to establish traditional evidence of title by conclusive evidence, Plaintiff must plead and prove such facts as:-
(a) Who founded the land in dispute
(b) How they founded the land and
(c) The particulars of the intervening owners through whom they claim.
He referred to the cases of Nkado v. Obiano (1997) 5 NWLR (Part 503) page 31 SC Ohiaeri v. Akabeze (1992) 2 WLR (Part 221) page 1 and Elegushi v. Oseni (2005) 14 NWLR (Part 945) page 348.
Learned Counsel for the Appellants submitted further that reference must be to the fact in recent years as established by evidence and by seeing which of the two competing histories is more probable.
He urged further that from the evidence on record, both parties were in actual possession of portion of land in Atan and have been dealing with same and exercising acts of ownership and possession of portions of land in Atan. Submitted that Appellants gave detailed history that is more credible than the Respondents. The Respondents failed to establish title to the land in dispute. He urged the Court to resolve issue one in favour of the Appellants.
Learned counsel for the Respondents submitted that there are five ways by which a party may prove his ownership of land. These are:-
(i) Proof by traditional history or traditional evidence
(ii) Proof by grant or the production of document of title
(iii) Proof by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the persons exercising such acts are true owners of the land.
(iv)Proof by acts of long possession
(v) Proof by possession of connected or adjacent land in circumstance rendering it probable that the owner of such land would in addition be owner of such land would in addition be owner of the land in dispute.
He referred to the cases of Iseogbekun & Anr. v. Adelakun & Ors. (2012) 4 SC page 86 at 93 and Idundun v. Okumagba (1976) 9-10 S.C page 227. Submitted further that the parties relied heavily on traditional evidence to ground their respective claims. In proof of the Respondents case, the Respondents tendered Exhibit 002 which is the Survey of the Respondents entire land which was verged Red and indicated the area trespassed by the Appellants which area was verged Yellow. The Respondents called evidence of boundary mates, their grantees and the surveyor who prepared the plan Exhibit 002.
The evidence of the Appellants was at variance with the pleadings and same could not have been considered as being true by the trial Court. Reliance was placed on the case of Bamgboye v. University of Ilorin (1999) 10 NWLR (Part 622) page 327 para E where the Court opined that:
Evidence which is at variance with the pleadings goes to no issue and should be rejected and if admitted should be expunged from the record.
It is contended further that the trial Court was right by resorting to relevant facts in recent years as established by evidence and seeing which of the two compelling histories was more probable. The histories of how the Respondents predecessor in title came to settle on the land conflict in all material facts with that of the Appellants. But the Honorable trial Court having assessed the witnesses and the evidence of PW6 in contrast to that of DW3 resorted to relevant facts in recent years to see which of the two compelling histories was more probable.
Learned counsel for the Respondent submitted further that there is nowhere in the statement of defence or evidence on record where the Appellants stated that:-
The female children inherited the land, the sons of Isiyemi took control pending when the female children had sons and the sons of the female children of Adagunja took control.
Learned counsel for the Respondents submitted further that when two persons claim possession of disputed land, the presumption is that the person having better title to the land is in lawful possession. Reliance was placed on the case of Oladunjoye v. Akinterinwa (2000) 4 SC (Part 1) page 19 at 40 where the Supreme Court opined thus:-
The law attaches lawful possession to person with better title . . . two persons cannot be in possession of a land at the same time. One must be lawful possessor whereas the other is the trespasser.
Respondents counsel submitted that the Appellants failed to prove their case. The proper order the Court should make and which it has made in this instance was to award judgment to the Respondents that have proved their case. He urged the Court to resolve issue one against the Appellants.
In a case of declaration of title to land, the onus lies on the Plaintiff to satisfy the Court that he is entitled to judgment based on the evidence adduced by him in connection with the declaration sought. In proving his title, he can only rely on his own evidence alone and not on the weakness of the Defendants case. See the cases of Aromire v. Awoyemi (1972) 1 All NLR 101, Kodilinye v. Odu (1935) 2 WACA 336, Adebakin v. Odujebe (1972) 6 SC page 208 and Balogun v. Yusuf (2010) 9 NWLR (Part 1200) page 515 at 533 paras C -D and F – G.
To establish traditional evidence of title by conclusive evidence, the Plaintiff must plead and prove facts as to:
(a) Who founded the land in dispute
(b) How they founded the land
(c) The particulars of the intervening owners through whom they claim. See Mogaji v. Cadbury (1985) 2 NWLR (Part 7) page 393.
Both parties in this case relied on traditional history or evidence which are plausible but conflicting. In a situation where there is a conflicting traditional history, the Supreme Court in a plethora of cases had enjoined a trial Court that the best way to test the traditional history is by relevance to facts in recent years as established by evidence and seeing which of the two compelling histories is more probable. See the cases of Kojo II v. Bonsie(1957) 1 WLR page 1223; Irolo & Ors. v. Uka & Ors. (2002) 14 NWLR (Part 786) page 195 and Okoko v. Dakolo(2006) 14 NWLR (Part 1000) page 401 and Akanbi v. Salawu & Anor. (2003) 13 NWLR (Part 838) at 637.
The evidence of the parties on record on the control of the land in dispute can be viewed from their pleadings and evidence.
Appellant stated that his progenitor Olumisi Adagunja founded Atan about 300 years ago and he was the first Baale of Atan.
See paras 4 – 5 of the Amended Statement of Defence of the Appellants at page 46 of the record where they averred thus:-
(4) The defendants are descendants of Olumisi Adagunja who originally first settled at the place now known as Atan-Ota about 300 years ago.
(5) Olumisi Adagunja migrated from Ile-Ife with some group of people and after leaving Ife they arrived at Oke-Ata near Abeokuta where they spent 17 days and consulted Ifa oracle whether the place will be good for them but the oracle ask them to move on.???
The Respondents in paras 9, 10, 11, 21, 22, in their amended statement of claim at page 86 of the record averred thus:-
9. Isiyemi the ancestor of the Plaintiffs and Progenitor of Isiyemi Family founded what is known today as Atan, Ota.
10. Isiyemi is the Son of Ikoriku, the first at Ota from Ijemo ruling house.
11. It was during the reign of his father in Ota that Isiyemi founded Atan which was a Virgin forest and established his farm and hunting tent there.
21. The land of Isiyemi upon his demise in 1901 was inherited by his children and thereafter his grand children who exercise rights of ownership thereon.
22. Isiyemi had earlier became the Oba of Ota in 1882 and left the whole land at Atan in the care of his Children.
There is no evidence from the Appellants as to when Adagunja began to reign as Baale of Atan and when he died. However there is evidence from the Appellants that after the death of Adagunja, the two sons of Isiyemi took control of the land in dispute because the children of Adagunja were females. That piece of evidence supports the Respondents case that the Respondents family had been in control of Atan at least since 1901.
The evidence of the Respondents is also to the effect that their progenitor Isiyemi was the first Baale of the land of Atan, he was Baale till 1882 when he went back to Ota to be a crowned Olota of Ota and his own first child became the Baale in Atan in 1882, and up till now the lineage of Isiyemi had been Baale of Atan until recently when CW6 the 1st Claimant who was Baale was crowned the Oba of Atan. This evidence was not controverted by the Appellants.
The above shows that in recent times and up till now the descendants of Isiyemi i.e. the Respondents family exercise control and authority over the land in dispute. The evidence of the boundary men to the land in dispute is also worthy of consideration to which the learned trial Judge found at page 136 of the record thus:-
I think I will prefer the evidence of the incumbent baale and the traditional ruler of Onigbongbo village to that of a member of the family as regards to the same subject matter. I need to say that the evidence of the DW2 is the only evidence of boundary mate called by the defendant whereas the claimants called three boundary mates whose evidence I find credible.
Furthermore the claimants pleaded and led evidence to the grant of land made to the St James Catholic Church Atan, and to the Ajuwon family. The claimants called the evidence of the CW3 and CW4 to prove these facts.
The only evidence of sale of land made by the defendants is the evidence of the DW1, Alhaji S. Olatunji Chairman of Sifor Ltd who testified that he
bought the land from the defendants family sometimes in 1985 and obtained a certificate of occupancy in respect of same land in 1st January, 1987.
PW6 Oba Solomon Adebiyi Isiyemi in paragraph 38 of his additional evidence on oath at page 78 of the record had this to say:-
That my family allowed some of the customary tenants to sell portion of the land granted to them and that was why Isiyemi allowed the Defendants family to sell the land to Sifor Company and the portion sold to Bisi could not sail through and that was why the Defendants have to bring him to the 1st Claimant for endorsement as a witness.
It is the law that where evidence given by a party to any proceedings or by his witness is not challenged by the opposite side who had the opportunity to do so, the Court can act on such unchallenged evidence.
Appellants pleaded in their Amended Statement of Defence in paragraph 27 at page 48 of the record of appeal that the Appellants family had some customary tenants like Odu Agemo, Alaba Oje, Omoolomo and others who have been on the land for years and no one disturbed them until recent. Appellants failed to call the evidence of any of such tenants. The facts pleaded in paragraph 36 of the Amended Statement of Defence as acts of ownership in recent times seems to have been abandoned as no evidence was led to prove these facts. It is trite that any pleaded fact of proceeding that is not proved or supported by evidence is deemed abandoned. See FBN Ltd v. Moba Farms Ltd (2005) 8 NWLR (Part 928) page 92.
The learned trial Judge at pages 137 to 138 of the record stated that:-
I have carefully considered the evidence of the witnesses for both parties as regards the establishments of facts in recent year pleaded and I am of the firm view that the history of the claimants is more probable and I prefer the traditional history as relied upon by the claimants to that of the defendants in this case. The claimants are therefore entitled to the grant of statutory right of occupancy to act that piece of land lying and being at Atan Ota as shown in survey plan AKN/OG/007/LD/2009.
In proof of their case, Respondents called evidence of boundary mates, their grantees and the surveyor who prepared the plan Exhibit 002. Appellants on the other hand called DW1 who gave evidence that he purchased his land upon which he situate his company from the Olumisi Adagunja who incidentally was the person the Appellants referred to as their progenitor who they claimed founded the land in dispute over 300 years ago. At page 124 of the record DW1 under cross-examination stated:-
Yes, and I bought from Olumisi Adagunja.
The above evidence cannot be said to be credible as DW1 could not have rightly purchased the land directly from Olumisi Adagunja who the Appellants claimed to be their progenitor. The evidence is at variance with the pleadings and same could not have been considered to be true by the trial Court. The Respondents have proved better title than the Appellants in this case in view of the fact that the traditional history relied upon by the Respondents is more probable than that of the Appellants. The findings of the learned trial Judge are not perverse as they are backed or supported by credible evidence. Issue one is hereby resolved against the Appellants.
Whether the alleged contradiction in the evidence of the PW6 who was the Respondents star witness was material and sufficient enough to deny the Respondents judgment considering the totality of the prove of evidence provided by the Respondents to ground their case before the trial Court.
Learned counsel for the Appellants submitted that the 1st Respondent materially contradicted himself while giving evidence and his entire evidence ought to be rejected by the learned trial Judge. He argued that the traditional history being relied on by the Respondents is materially contradicting and thus their claims must fail. He submitted that in one breath, they gave evidence that they do not know any place called Orile Awori, then in another breath they gave evidence that they know Orile Awori and that it is the original homestead of Atan. Also the 1st Respondent testified that the Appellants forcefully entered into the land in dispute. He later gave evidence that the Appellants are customary tenants whose ancestor Adagunja approached the Respondents family for a place to cultivate and was given a portion out of the larger portion of Isiyemi’s land. Learned counsel for the Appellants submitted that the rule in Kojo II v. Bonsie (1957) 1
WLR 1223 will not apply but rather that the Respondents claims must fail. He referred to the case of Mogaji v. Cadbury Nig. Ltd (1985) 2 NWLR (Part 7) page 393 at 430 paras A -H and 431 para A. Learned counsel for the Appellants urged the Court to resolve issue two in favour of the Appellants and allow the appeal.
Learned counsel for the Respondents submitted that the Respondents in their claim maintained the fact that the land in dispute was founded by their progenitor Siyemi and also traced how the land devolved from their generation to generation until it finally devolved on the Respondents. He submitted further that in paragraph 27 of the Amended Statement of Claim as contained at page 87 of the records, the Respondents states as follows:-
The Claimants aver that the Defendants have no title or right on the Claimants land but have forcefully entered thereon demolishing properties like building, cash crops and economic trees to the utter surprises of the Claimant.
The Appellants, in their Statement of Defence in paragraph 24 page 47 of the Records, in admission of the title of the Respondents stated thus:
That one of the children of Isiyemi who is the maternal relation of the Defendant was made a Baale at Atan because the late Baale Olumisi had no male child to reign after him and until the commencement of the present hostility, the Defendants and the Claimants are generally known to be relation.
Learned Counsel for the Respondents submitted that the issue was not originally contained in the claim of the Respondents and to that extent was never in issue with the Respondents. Reliance was placed on the case of Mari v. Shanono (2007) All FWLR (Part 345) page 303 ratio 4 which states:-
Evidence not pleaded goes to no issue where such evidence is inadvertently admitted, it would be expunged.
Learned counsel for the Respondents submitted that the Appellants star witness DW3 confirm Isale Awori as the homestead of Atan under cross examination as contained at page 127 of the records as follows:-
We are living at Isale Awori at Atan. That is where our father founded.
Submitted that the contradiction in the evidence of 1st Respondent i.e. PW6 as regards Orile Awori under cross examination as different from Isale Awori cannot be said to be material or fundamental which could have led the trial Judge to decide otherwise. The contradiction in the evidence of DW3 only confirms paragraph 3 of the Respondents Amended Reply. He urged the Court to resolve issue two against the Appellants and dismiss the appeal as lacking in merit.
From the evidence on record, Respondents restricted their evidence to the claim before the trial Court. The evidence of the 1st Respondent who was the PW6 and the witnesses called by the Respondents were in line to establish the title of the Respondents to the land in dispute. 1st Respondent or PW6 was consistent in affirming the Respondents title to the land as contained in the Respondents claim before the trial Court. It was under cross examination that he stated that:-
I know Orile Awori in Atan. Orile Awori was the original homestead of Atan.
It should be noted that the Respondents never claimed Orile Awori as the homestead of Atan in their Amended Statement of claim. The issue of Orile Awori or Isale Awori was not a fundamental one as to affect the merit of the Respondents case before the trial Court.
Respondents did not adduce two conflicting histories of their ownership in support of their claims. Rather the conflicting traditional history was between the Appellants and the Respondents. The learned trial Judge findings are backed by credible evidence and he rightly applied the rule in Kojo II v. Bonsie (Supra). The case of Mogaji v. Cadbury Nig. Ltd Supra cited by the learned counsel for the Appellants is not applicable to the facts of the present case.
It is the law that contradictions in evidence of witnesses can only avail the opposite party where they are material and affect the live issues in the matter. See the cases of Usiobaifo v. Usiobaifo (2005) 1 SC (Part II) page 60 and Owie v. Ighiwi (2005) 1 SC (Part II) page 16 where the Supreme Court per Niki Tobi JSC opined:-
For contradiction to change the fortunes of an appeal in favour of the Appellant, they must be material and not peripheral or caricature
Human being, being not machine, does not act with the characteristic automation of machines. There could be little difference here and there when they
give evidence on the same matter or event. If Human being give evidence on the same matter or event to the exact minutes details, a Judge should seriously suspect such evidence because a possibility of tutoring or a rehearsal developing into a citation before the date of given evidence. Where there are matriculate or immaterial differences of evidence of witnesses here and there, that in itself shows their truthful testimonies and I should emphasize the expression matriculate and immaterial.
The contradictions highlighted by the Appellants are not substantial to affect the substance of the Respondents claim. Issue two is hereby resolved against the Appellants.
Finally, the appeal is devoid of merit and it is hereby dismissed. The judgment of Ogun State High Court in Suit No. HCT/86/2008 delivered on the 3rd of July 2013 is hereby affirmed. Parties are to bear their respective costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the opportunity to read the draft of the judgment just delivered by my learned brother, Modupe Fasanmi, JCA.
My learned brother has adequately considered and resolved the issues that came up for determination in this appeal. I therefore agree with the reasoning and conclusions reached by my learned brother. On that note, I agree that this appeal lacks merit. It is hereby dismissed. I abide by the consequential orders made therein.
NONYEREM OKORONKWO, J.C.A.: I have had a preview of the lead judgment in this case delivered by my lord Modupe Fasanmi JCA, dismissing the appeal as being devoid of merit.
I agree with the reasoning and conclusion and abide by the Orders made.
T.A. Olatunji-For Appellants